Common Law vs Civil Law - Essay Example

Common Law versus Civil Law The common law and civil law are two distinct legal systems and approaches to law. The English legal system exemplified the common law system of justice and France, the civil law. This paper will explore the differences of these two legal systems as well as outline their respective advantages and disadvantages. Comparison Common law began its development during the reign of Henry II. It was established as a unified system of law which was common to the whole of Britain. Such system is also called adversarial system. An important characteristic of common law is that it is based on judges’ decisions in important cases which are then used by other judges as a standard to follow in future cases. This is the same principle that guides the concept of “judicial precedent” wherein the decisions made by a judge in a previous case are binding on the decisions of future judges when facts are the same. Particularly, courts must follow decisions already made in higher or superior court and appeal courts are bound by their own past decisions. (Gray, Lockyer and Vause, p. 26) Based on the Latin saying: “Stare decisi et non quieta movere”, judicial precedent is what makes the English judicial system rigid where in other areas it is flexible. France does not have the principle of binding precedent in the sense that “Code Civil” forbids the courts to interfere with legislation and to make rules. “It is prohibited for judges to decide by way of general provisions and rules on the cases that are brought before them.” (French Civil Code, Article 5) This provision goes a long way to explaining the special feature of the jurisprudence system in France appertaining to case law: the Highest Court ensures a certain uniformity in the interpretation of the law by the lower court judges hence making a significant contribution to the structuring of “a series of institutional procedures and adjustments furthering the adherence to previous decisions under certain conditions.” (Serverin 1999, p. 6) The High Court tends to produce tendencies or a consistency of interpretation expressed by the notion of “persisting jurisprudence” or jurisprudence constante. The practice of the courts in France, wrote Lambert and Wasserman (1929) does not become a source of the law until it is definitely fixed by repetition of precedents which are in agreement on a single point. (p. 14-15) According to Gary Slapper and David Kelly (2004), the usual distinction to be made between the two systems is that common law system tends to be case centred and hence judge-centred, allowing scope for a discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts, whereas civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion. (p. 3) “Civil law, being essentially substantive instead of adjectival, puts more emphasis on its choice of law rules, while common law, being essentially procedural, focuses on rules of jurisdiction.” (Tetley) As to which legal system is better, let us turn to the standard set by Deffains and Kirrat (2001), who said: A legal doctrine can be judged from two perspectives: a) The content: are the rules desirable?, i.e. efficient? (b) The quality of the formulation: are the rules described in a simpler and more precise way than competing doctrines? A method is yet to be developed that would cover both of these perspectives. This is particularly important to those groups of comparatists who are endeavouring to draft new European codes. And so, in the meantime, the following are the acknowledged advantages and disadvantages between the two legal systems that are significant in their comparison. Common Law In terms of advantages, common law offers consistency in the legal system which helps to provide a sense of equality and justice. Secondly, there is certainty because of the high number of recorded cases which have gone before and that lawyers are able to advise clients with confidence. Flexibility also characterizes common law when it comes to the options available to judges in the application of the law. As a consequence, the law can develop and be applied fairly. The judgments of English courts, being comprehensively reasoned, are in stark contrast to the decisions of the civil courts which for their part are relatively terse and devoted in the main part to statements or restatements of principles. On the other hand, the disadvantages of common law start with issues on discretion. In making decisions, as the judges are granted flexibility, common law courts were attempting to apply general body of principles in their respective jurisdiction and so it is inevitable that sometimes there is misconception and misstatement of it, resulting in errors. (White 2000, p. 190) In addition to this, judges may look for justifications not to follow a precedent and create illogical distinctions to support them. Gray, Lockyer and Vause (2004) also points to what they called as “accident of litigation” wherein the court relies upon a suitable case appearing if it wishes to alter the law. (p. 26) The common law, through common law courts and judges, was also always happier developing theories to describe the realities of the law, rather than moulding the law around abstract theories. (Cox, p. 12) As a consequence, the state never became a legal concept in English common law since the government authority is an abstract notion. Finally, one of the glaring disadvantages about common law is the sheer volume of prior cases which, in effect, could make understanding of the law very time consuming. Civil Law One of the hallmarks of civil law tradition is that it is largely based on extensive codification of law. This has at least two advantages. First, it allows the law to be more easily ascertained; it permits, in a sense, an enhanced accessibility to the law. This accessibility is different from the English judgment as described previously. Secondly, and perhaps more significantly, it allows countries on a similar legal system to update their system, both procedurally and substantively, by simply being provided with the amendments to the Civil Code. Another advantage civil law is anchored in its inquisitorial characteristics. In the French legal system, the judge has the primary responsibility for establishing facts and moving the case forward. It is in this regard, wherein it appears that it is fairer and more inclined to be fair than the common law system. An impoverished party in a case need not worry about paying for a good lawyer or barrister to represent him or her in order to get a favorable judgment. The judge may establish the truth for himself and that he is not reliant to the evidence presented to him. In the civil law system there appears to be less battles and more discussion. In common law countries the High Court acts directly upon statutes either by putting them into practice or by refusing to apply them because of their unconstitutional nature. French civil courts, however, whether they be lower or appeal courts – and even the Supreme Court – do not have this prerogative. And this area becomes a weakness for the French legal system. Here, the courts’ main responsibility is to apply the legislation under the control of the Court of Cassation which supervises the interpretations made by lower judges. While there is indeed uniformity achieved by such standardized practice in civil law, there is a rigidity that counters the effective dispensing of justice according to local or specific circumstances present in individual cases. There is no pragmatic approach and that the judge may choose to ignore the evidences presented by the parties involved since the priority is the principles that govern a case at hand. Another disadvantage about the French legal system with its Napoleonic Code is that it is almost isolated when it comes to international arena. The fact is that Anglo-American law or the common law dominates international transactions. The foreign lawyer services in Paris claims most of the international transactions of multinational companies headquartered there. (Calabrese & Burgelman 1999, p. 28) Conclusion Both of the common law and the civil law as exemplified by the English and the French experience tell us that both of these legal systems have their respective strengths and weaknesses. This dimension to the comparison of the common law and civil law becomes fundamental in the backdrop of the increasing integration of the European Union. There may come a time when a legal system would be required for the union. The idea is that while both are extremes, they are proven to complement each other. That is illustrated by the fact that today a number of legal systems elsewhere in the globe found it convenient to combine these two systems in their own legal structure. Civil law and common law heritage could also be found in the Statutes and rules of the International Criminal Court. Finally, both legal systems could even learn from each other. The English common law, for example, has assimilated certain elements of civil law in its jurisprudence. Each legal system would profit by the other’s experience. England may learn from France the great advantages of a well-regulated court of appeal, and of a provision for executing the laws by public prosecutors. France, on the one hand, may learn from England the inestimable benefits of keeping separate the judicial and legislative functions of remunerating judges more adequately while reducing their numbers so as to reduce corruption. References Calabrese, A and Burgelman, J, 1999, Communication, Citizenship, and Social Policy: Rethinking the Limits of the Welfare State. Rowman & Littlefield. Cox, N, 2006, Technology and Legal Systems. Ashgate Publishing, Ltd. Deffains, B and Kirat, T, 2001, Law and Economics in Civil Law Countries. Routledge. "French Civil Code" 1803, Preliminary Title. The Civil Code. Available from: http://www.napoleon-series.org/research/government/code/book1/c_preliminary.html [August 14, 2008] Gray, D Lockyer, B and Vause, J, 2004, BTEC National in Public Services. Heinemann. Lambert, E and Wasserman, M, 1929, The Case-Method in Canada and the Possibilities of its Adaptation to the Civil Law. Yale Law Journal, 39(1), 1-21. Serverin, E, 1999, Le phenomene jurisprudentiel comme un des aspects de la production du droit par les tribunaux. Moscow, TACIS Workshop. November 25-26. Slapper, G and Kelly, D, 2004, The English Legal System. Routledge Cavendish. Tetley, W, (not dated), Mixed Jurisdictions: Common Law vs. Civil Law (codified and uncodified). Available from: http://www.unidroit.org/english/publications/review/articles/1999-4a.htm [August 14, 2008} White, E, 2000, The Constitution of the New Deal. Harvard University Press. Read More