Precedent in the Civil and Common Law Systems - Coursework Example

Precedent in the Civil and Common Law Systems Introduction The common law and civil law adopt a basically different perspective towards the legal process. The civil law system is based on codes and statutes, while case law constitutes the secondary source of law. However, in the common law system, the law arises from the decisions of the courts. Legal precedent is the main difference between these two systems. In the common law system precedent is of a binding on the courts; whereas, in the civil law, the courts have to decide on the basis of the statutes. The common law courts have to decide cases, and provide guidance for deciding similar future disputes1. In the common law, legal principles established by a court are binding on the courts that are lower in the hierarchy. On the other hand, in the civil law system, the ruling of a court is not binding on other courts. The doctrine of stare decisis is inapplicable to the civil law courts, and the decisions of a superior court are not binding on the lower courts. Moreover, it is common for opposite conclusions to be arrived at in similar cases. Consequently, civil law courts confine themselves to the interpretation of the laws2. The principal legal traditions of the world are those of the civil law and common law. The extant legal system in countries like New Zealand and England are termed as the common law systems. On the other hand, nations, such as France, Germany and Italy, are distinguished by the civil law system3. The common law and civil law traditions are the distinguishing feature of some of the most powerful countries in the world. This bestows upon them, untold influence and power. The civil law tradition has been in existence, from 450 BC4. Many countries of Europe, Latin America, Asia and Africa follow the tradition of civil law. Most importantly, the law of the European Union, the supranational entity of the modern world, is based on the civil law tradition. Consequently, it would be difficult to exaggerate the significance of the civil law tradition5. Civil law has many divisions, and amongst these, the oldest relates to the Roman law that had been codified and compiled, in the 6th century AD, at the behest of Justinian. This early variant, dealt with a number of legal issues, such as personal law, inheritance law, family law, property, torts, and contracts. Subsequently, the Roman Empire went into decline and was overrun by foreign invaders. These foreign powers made crude changes to Roman law, and this process has been termed as the barbarisation of Roman law6. Subsequently, the Mediterranean countries were attacked by the Arabs. This resulted in a short period of barbarism. Thereafter, the European forces defeated the Arabs. After this, Europe was witness to unprecedented developments in the artistic, cultural and intellectual fields7. This so called Medieval Renaissance generated the interest of the intellectuals and scholars in law. As this activity was chiefly concentrated in Italy, this country emerged as the legal beacon of the Western world8. Aims To make an analysis of the civil law and common law systems with specific reference to precedent in Australia, and the concept of codification in France. In this regard, various books and journals were consulted, and several cases had been analysed. Description Development of the Doctrine of Precedent in the common law system pertaining to Australia. The doctrine of precedent had its origins in the common law system, developed in England. This is of considerable antiquity and there are references to it that pertain to the thirteenth century9. In accordance with the doctrine of precedence, the lower courts must follow the decisions of higher courts. It provides legal certainty and predictability, and enables many litigants to anticipate the outcome of their dispute10. Over a period of time, it has become the practice to give considerable importance to the ruling in previous cases that were based on similar circumstances. It has been presumed that such course of action ensures equity in justice. In addition, precedent guarantees that the judge does not foray into creating new laws, but restricts himself to maintaining and applying the extant law11. All the same, some exceptions to precedent have been recognised; and some of these relate to decisions that obviously defy reason. Such decisions have not been perpetuated, and on the other hand, they have been rescinded. This gives rise to the important judicial principle that precedent prevails, save for instances where it would be inequitable or ridiculous12. Nevertheless, precedent cannot be ignored for the reason that the presiding judge deems it to be unreasonable. Any such categorisation has to be objective and not subjective or restricted to the opinion of a single specific judge. The opinion of Blackstone assumes great significance, in this context. He had stated in an unambiguous manner that a judgement had to be prima facie, absurd or unjust if it was not to constitute a precedent for subsequent decisions13. Advantages of Precedent There are several advantages, as well as disadvantages in respect of the doctrine of precedent. These are detailed in the sequel. Certainty On account of the doctrine of precedent, an appreciable degree of certainty is bestowed upon the decisions taken by the courts. Precedent ensures that a judge will give a similar decision to that of a case that was based on the same or similar set of circumstances. This is of great benefit to litigants, who can predict the outcome of their litigation14. Nevertheless, the strength of any legal system is dependent upon its possession of a reasonable degree of flexibility, in pronouncing judgments. This task had been the province of the House of Lords, in the context of the legal system of England. The task of balancing certainty against flexibility is onerous but indispensable15. Possibility for Growth Another major advantage with precedence lies in the fact that new legal tenets can established, while adapting the extant rules to changing circumstances. The discretion granted to the judges, by this system, to enact new rules or to change the existing rules16. Practicality The case law of England is derived from case law. Consequently, there is nothing hypothetical about this body of law, which is independent of any particular theory or model of law. Moreover, a distinguishing feature of English case law is the presence of exhaustive rules, in comparison to the legal systems of the rest of Europe17. In addition, it constitutes of a compendium of information. Disadvantages of the Doctrine of Precedent Rigidity Due to precedence, if a legal rule is established, by a court ruling, then it becomes binding. Although, the House of Lords, need not follow precedence, in practice the cost of litigation and the disinclination of their Law Lords to change their previous decisions, renders the doctrine of precedent, rigid in most of the cases18. Bulk and Complexity The case law over a period to time has not only become voluminous, but it has also acquired considerable complexity. Consequently, it is possible to neglect some important legal tenet, whilst engaging in litigation. This is especially true of legal areas that owe their development to case law, and the law of tort is one such instance19. Conflict with Constitution and Slowness of Growth In practice, judges enjoy substantial powers to generate new legal tenets, on the basis of their decisions. This could prove to be in conflict with the doctrine of separation of powers; because, the task of formulating legislation is solely that of parliament. The originally envisaged task of the judiciary is to interpret the law that has been enacted by parliament. Moreover, these case law generated legal rules could breach the European Community Law and the 1988, Human Rights Act. Moreover, the tedious pace and expense of litigation, renders case law unsuitable for catering to the needs of a rapidly changing society; whose needs can only be satisfied by adequate legislation. Thus, it becomes obvious that the doctrine of precedent is unsuitable for the extant social situation, with its rapidly changing needs and developments. The existing social and political situation tends to make case law, obsolete and irrelevant20. There is an increased incorporation of the legal systems of the European Union and international law, which serves to introduce new legal concepts and debates21. Precedent proves unequal to the task of addressing such novel issues. Stare decisis or precedent is common to several common law legal systems. In a judicial hierarchy, the decisions of the higher court are binding on the lower courts, in the context of case involving similar facts and events. The principle of precedent ensures legal certainty. As such, principles that were apt in the past tend to become unjust or inapplicable in a changing society, at a later date22. Comparison of civil law and common law systems with a special focus on Precedent and the corresponding procedures. It had been the previous practice for common law to rely to an unwarranted extent on legal formalities. In any litigation, a lawyer had to be engaged, who would then state the cause of action in a precise manner. Any deviation or lapse, in the use of legal terms, by the lawyer would result in the dismissal of the claim. This was elitism at its worst, and it was undoubtedly undemocratic23. Subsequently, laws were enacted that supplanted common law crimes with statutory crimes. This required the judges to decide on the basis of statute and not the extant case law24. However, judges continued to decide on the basis of precedent; while some countries, merely codified the existing common law instead of enacting new legislation. The Australian High Court can overrule or depart from its own previous decision. In such situations, the ratio decidendi of the earlier decision will cease to be binding as legal precedent25. Nevertheless, the validity of the decision in the previous case will remain unaffected. In cases of departure from previous decisions, only its future binding effect will be rendered ineffective. However, it will not affect the past decisions relying on the same. The High Court of Australia is the final court of appeal and the constitutional court. Consequently, it has clarified that it is not bound by its previous decisions. In Attorney General for New South Wales v Perpetual Trustee Company Ltd, Justice Dixon had opined that strictly adhering to past decisions would be inappropriate for the Court, in the discharge of its duties26 . The High Court did not specify the instances, wherein it would rescind its own past decisions. While setting aside its previous decisions, the High Court employed some specific phrases, such as a manifestly wrong decision. This was depicted in Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australia27; The Tramways Case28; Cain v Malone29; and Lange v Australian Broadcasting Corporation30. In another case, the learned court employed the term fundamentally wrong, while rescinding a previous decision31. Courts are inclined to rescind their own decisions, in cases where such decisions were considered to be incorrect. In another case, the presiding judge described a previous decision as manifestly wrong32. By using such phrases, the High Court demonstrated the importance of their initiative to overrule their past decision, in cases with similar facts. On some occasions, courts are reluctant to apply the doctrine of precedent if they feel it as non-trust worthy. In Re Tyler; Ex parte Foley33 and H.C. Sleigh Ltd v South Australia34 the High Court of Australia clarified that past decisions should be set aside, only under extraordinary circumstances. Moreover, the judges should exercise their power to rescind, in a judicious manner. The Courts attitude in this case revealed the fact that the Doctrine of Precedent is very important for the Australian justice system that it cannot be discarded without proper justification. However, in constitutional cases, the High Court of Australia has indicated a greater proclivity to review past decisions. Constitutional decisions possess an entrenched nature, and they cannot be set aside by the legislature. Modification is possible, via some future decision by the High Court or amending constitutional referendum. An amending constitutional referendum is difficult to effect, in Australia35. Moreover, High Court judges are fully cognisant of the fact that their cardinal obligation is towards the Constitution, rather than strict adherence to the doctrine of precedent. Such commitment becomes crucial, in cases involving the protection of human rights and fundamental liberties36. This view was expressed by Justice Brennan in Street v Queensland Bar Association37. In Garcia v National Australia Bank Ltd, it was held by the High Court of Australia that if the reasoning of any of its decisions was based on the principle of ratio decidendi, then no other court was permitted to disregard, doubt or qualify such decision. Although, the lower courts can analyse and suggest elaborations; they are constrained by the legal duty of obedience towards the High Court. This case reasserts the doctrine of Precedent in the Australian legal system38. The State Supreme Courts are bound by the decisions of the Australian High Court. However, there has been some divergence of views, regarding whether these courts should be bound by their previous decisions. Most of the intermediate appellate courts retain the right to reconsider their previous decisions. This is the extant position, in respect of most of the intermediate appellate courts and the Federal Court of Australia39. Thus, the principle of legal precedent is employed in many decisions, by the intermediate courts. However, the Australian courts have not been averse to reverse an earlier decision, if they were convinced that such decision was incorrect or absurd. The Concept of Codification and Certainty of Law in the French legal system. The dogma of the French Revolution was reflected in the ideology of the French Codification; consequently, a major goal of this Codification was to revoke the previous legal system, in its entirety. To this end, the French Codification did away with the institutions of absolute monarchy, regal powers of an interlocking nature, the nobility, feudalism, territorial division, and the system of courts40. Subsequently, these Codes ushered in a novel legal system that was founded on the principles of the Enlightened Society and the French Revolution. Statute law, consisted of important principles, like equality before the law, individual freedom, private property, liberty of contract and the separation of powers. The last principle ensured that the judiciary did not trespass into the areas pertaining to the executive and legislature. The Codification, in accordance with the principles of ius rationalism, concentrated on rendering the legal system, simple and systematic. At the same time, it was ensured that the Codification remained uninfluenced by the ius framework, which entailed considerable complexity41. This approach, made it necessary to formulate codes, in such a manner that a set of rules that were coherent and free of lacunae, was realised. In this manner, the French Civil Code, from the perspective of accessibility to the masses, proved to be coherence and simplicity personified. This Civil Code was in the form of maxims that had to be developed and applied by the judges. The emergence of the Civil Code in France, resulted in similar efforts in Germany, many countries of Europe and the nations of Latin America42. As such, the French Revolution and the emergence of philosophical principles, like enlightenment, rationalism and ius naturalism, resulted in the codification of the 19th century43. However, towards the end of the 19th century, several new forces came to the fore, which had a major impact on this Codification process. These forces brought about a transformation in the legal and social order, which in turn effected critical changes to the civil law tradition44. The actual mechanism of such legal change could be visualised from the perspective of the decodification and recodification procedures. Decodification processes relate to special legislation that is distant from the civil codes; whereas, recodification concerns partial and global reform, in order to circumvent the obsolescence of civil codes45. Thibaut, an eminent professor of law, recommended the adoption of the Codification, as it would serve to make the entire legal system a coherent whole. It was his firm belief that such a coherent legal system would be replicate the simplicity and coherence of the French civil code46. The erstwhile codification of the 19th century underwent significant transformation, in the civil law countries. This change was pursuant to the socio – economic and political changes of the 20th century that mandated a change in focus from private law to public and regulatory law. Thus, a primary change was discernible in the civil law conventions, and this is exemplified by a shift towards constitutionalisation; decodification and recodification; and supranational legislation or the harmonisation of law, which has transpired, under the aegis of the European Community47. It can be safely asserted that no contemporary legal system is entirely codified or uncodified. A cogent example of this is provided by the legal system, extant in France. In this legal system, the Civil Code is surprisingly, devoid of any provisions that address the problems related to offer and acceptance. As a consequence, recourse has to be taken to case law or judge made law to resolve issues relating to this important area of commercial activity48. Therefore, the development of tort law has been chiefly on the basis of case law. The processes of decodification and recodification have played a major transformational role, in the context of civil law systems. This has been chiefly occasioned by innovative and imperative trends in law and society49. This has caused considerable concern for civil law countries, which have felt the need to effect significant modifications to their civil codes. The processes of decodification and recodification were so developed that they would conform to the needs of society. These processes are addressed by innovative legal methods. As a consequence, a vast body of legal provisions came into existence, which attempted to perfect and elucidate issues that fell under the purview of the civil code. The outcome was an enormous legal system, and this in turn led to the decodification process, whereby, substantial sections of the law were segregated and classified as new legal areas50. Some instances of these new systems are consumer protection law, employment law, and the law relating to intellectual property. The advent of supranational legislation and constitutionalism, and judge made law have engendered novel modes of decodification. A rejuvenation of sorts, transpired due to the process of recodification, in the context of the civil law systems. This process was further changed, due to global reforms that have brought into being new civil codes that are at marked variance with the civil codes of the 19th century51. These momentous changes have ensured that the civil codes do not become obsolete and irrelevant. Recodification employs several initiatives that involve the utilisation of comparative law to examine the means of addressing the common problems of society. These approaches are cognisant of the diversity obtaining in society, and take this factor into consideration, whilst formulating techniques for controlling legal institutions, strengthening the role of the judiciary and determining the limits of law52. Conclusion Civil law and common law are fundamentally different; and such difference arises, due to several factors. Civil law consists of a system of codification, and a systematic approach to statutes and codes. In addition, legislation is deemed to be the primary source of law; which is unlike the common law system that relies upon judge made law or case law, as the chief source of law. This renders the task of arriving at decisions, quite intricate, in civil law systems. The court has to refer to all the relevant general rules and principles of code, prior to passing judgement. However, in the common law system, precedent can be relied upon to arrive at a decision. The concept of binding precedent is relegated to the background, in the civil law systems. However, due consideration is accorded to finalised case law. In addition, some of the civil law systems derive from the inquisitorial system, and not the adversarial system. Furthermore, considerable disparity persists between the methodology adopted in civil law and common law. As a consequence, the opinions emanating from common law are more elaborate, in comparison to that of the civil law. The latter are distinguished by their brevity and formal nature. For instance, the practice among the French judges is to specify the relevant legislation and not the case law of the past. Although, the concept of Precedent is inherent in the justice system of Australia, the judges are inclined to rescind the previous decision, if it is unreasonable, with regard to the situation on hand. Similarly, in civil law countries, the processes of Decodification – Recodification serves the purpose of making their extant codes of law, up to date. These processes will be carried out with a sense of innovation. Although the doctrine of precedent in common law is binding on the courts, it is not rigid. Despite the absence of precedent in their justice system, civil law countries follow previous decisions, in some areas of law, where the law is either unclear or absent. Although precedent is an important principle of the common law system, judges tend to set aside previous decisions, if such decisions are not fair and reasonable. In the civil law system, there is a certain amount of influence exerted on the lower courts, due to the rulings of a superior court. This is because judges of the lower courts are desirous of circumventing the reversal of their decisions. Although former decisions have no binding force, in practice, the lower courts accord importance to the decision of a superior court, where the facts are similar. To surmise, in the common law systems the major source of law is custom and practice. Moreover, there is a strong reliance on precedent and the judiciary plays a proactive role in law making. However, not much importance is attached to legal scholarship, and the system permits the judicial review of statutes and executive actions. On the other hand the civil law system, the major source of law are the statutes, there is scant reliance on precedent, the judiciary is distanced from law making, and there is no provision for judicial review of statutes and executive actions. References Books Gifford, D. J., Understanding the Australian legal system, Routledge, 1977 Kirby, M., Precedent – Report on Australia, Utrecht, The Netherlands: International Academicy of Comparitive Law, 2006 Merryman, J. H., & Pérez-Perdomo, R., The civil law tradition: an introduction to the legal systems of Europe and Latin America, Stanford University Press, 2007 Cases Attorney – General for New South Wales v Perpetual Trustees Company Ltd (1952)85 CLR 237 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 Babaniaris v Lutony Fashions Pty Ltd (1987)163 CLR 1 Cain v Malone (1942) 66 CLR 10 Garcia v National Bank Ltd (1998) 194 CLR 395 H.C. Sleigh Ltd v South Australia (1977) 136 CLR 475 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 McGinty v Western Australia (1996) 186 CLR 140 Nguyen v Nguyen(1990) 169 CLR 245 Re Tyler; Ex parte Foley (1996) 181 CLR 18 Ruddock v Taylor (2005) 79 ALJR 1534 Street v Queensland Bar Association (1989) 168 CLR 461 The Tramways Case [No. 1] (1914) 18 CLR 54 Journal Articles McGinnis, J. O., & Rappaport, M. B., 2009, Reconciling Originalism and Precedent, Northwestern University Law Review Murillo, M. L., 2001, The Evolution of Codification in the Civil Law Legal Systems: Towards Decodification and Recodification, Journal of Translation Law & Policy Websites Advantages and disadvantages of precedent, 2006, Retrieved 24 January 2010 from http://legal-directory.net/english-law/advantages-and-disadvantages-of-precedent.htm Caslav Pejovic, Civil Law and Common Law: Two different paths leading to the same goal, Retrieved 25 January 2010 from http://www.austlii.edu.au/nz/journals/VUWLRev/2001/42.html#Heading17 Common Law, 2002, Retrieved 22 January2010, from World of Criminal Justice, Gale : http://www.credoreference.com/entry/worldcrims/common_law Precedent, Retrieved 24 January 2010 from http://www.lectlaw.com/def2/p069.htm Role of Doctrine of Precedent in the English Legal System, 9 April 2008, Retrieved January 22, 2010, from socyberty: http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ stare decisis, 2006, Retrieved January 22, 2010, from Collins Dictionary of Law: http://www.credoreference.com/entry/collinslaw/stare_decisis The differences between common law and civil law systems, Retrieved 24 January 2010 from http://openlearn.open.ac.uk/mod/resource/view.php?id=208934 Read More