English Civil Law Compared to Italian Civil Law - Essay Example

A Comparative study of Law: English Civil Law compared to Italian Civil Law I. Introduction Globally, two are the most known ‘families’ of law: the Common Law and the Civil Law. The first of these legal systems is applied in Britain and all the countries with similar legal structure, like the U.S.A., Canada, Australia and so on. Civil Law characterizes mainly the countries belonging in the continental Europe. Between these two legal systems there are several differences however the most important one is the absence of Codes (i.e. codified legal rules) in the countries of Common law while for the Civil law countries Codes constitute the basis of all legal procedures. In this context, England and Italy can be considered as characteristic examples of the differentiation of laws as the first country belongs in the Common law countries while the second one – as all countries of continental Europe – uses Civil law as its legal basis. Traditionally, Italy has been considered as belonging in a particular legal system, the ‘romantic one’, influenced by the Roman law which governed the country at its early stages of existence. However, throughout the years Italy formulated a legal system characterized by the principles of Civil law and mainly by the existence of Codes for the resolution of all legal disputes. On the other hand, England has been the country that first developed the Common law. In fact common law has its roots in the legal proceedings taking place in England through ancient years when the country suffered from continuous and intensive invasions of foreign populations. Throughout the years, Common law – as appeared and developed in England – expanded in all countries related with that country with most characteristic examples the U.S.A. and the Australia. II. English Civil Law – main characteristics In order to understand the structure of English common law we should primarily refer to Common law in general. A definition of Common law as stated by Ritter (1910, 86) is the following one: “The common law is that which derives its force and authority from the universal consent and settled customs of the people; it has never received the sanction of the Legislature by express act, which is the criterion by which it is distinguished from the statute law; it has never been reduced to writing”. In other words, the main characteristic of common law is the absence of specific written (codified) text. Normally, such a structure would help the countries that have adopted this system to save time and costs regarding the whole net of their legal procedures. However, it has been proved in practice that this target has never been achieved. The example of England which is the country of origin of common law proves that this type of legal system needs several transformations in order to be effective and rapid. After examining thoroughly the English legal system Chiarloni et al. (1999, 17) came to the conclusion that “it is well recognized that the existing system of civil procedure in England and Wales is beset by excessive costs, delay, and complexity; for example, litigation is very expensive, and it is generally impossible to predict the probable costs of an action accurately in advance; cases can take many years to be heard, due to unchecked party delays and backlogs within the system”. It seems that the application of common law in the country did not have the expected outcomes. It is perhaps for this reason that significant parts of common law have been alternated in order to become more effective. In this context, it has been found by Geldart (1995) that the greater part of British criminal law is statutory. In fact, the British criminal law has become statutory in order to help the improvement of the relevant procedures. Towards this direction it is stated by Geldart (1995, 174) that “much old common law has been codified, and Parliament continually adds new crimes; in addition to the enactment of codes to cover specific areas of crime, the Law Commission in 1989 and 1992 published draft codes for the major portion of the whole range of English criminal law, and in 1993 a comprehensive Bill to codify the whole of the law relating to non-fatal offences against the person”. Apart from the criminal law, the Civil law also was transformed in order to respond to the increased needs for speed and reduction of costs in the legal procedures. Towards this direction the new Civil Procedure Rules that introduced in Britain in April 1999 have been very helpful for the improvement of the British legal system. It could be argued on the other hand that the changes introduced through the above Rules were limited and with no particular importance for the improvement of the legal procedures in Britain. However, it is noticed by Chiarloni et al. (1999, 16) that “while the changes made to the basic structure of procedure are modest, the changes in the philosophy of procedure and the approach to its operation are far reaching; two such changes deserve special notice: the first concerns the control over the litigation process; the second is concerned with the philosophy of procedure; as already noted, the main defect of English civil procedure is thought to be an excess of litigation activity; to reduce this activity the new rules place the control of litigation in the hands of the courts”. The introduction of the above two major changes in the British legal system should be regarded as significant regarding the increase of Courts’ effectiveness in Britain (Mattei, 1997). On the other hand, it is necessary for the above principles to be applied equally at all levels of British legal system in order to produce the requested results. If their application will be optional and partially, then it is very likely that the above reform will have no particular effect on the existed legal procedures in Britain. III. Italian Civil Law – general description As already stated above, legal proceedings in Italy are based on the principles of Civil law with all possible consequences that this choice can have for the effectiveness of the legal protection provided by the country’s Courts. In this context, it is noticed by Chiarloni et al. (1999, 13) that “in most civil law countries the state of the administration of justice is a source for concern; in Italy the problem of delay is acute; ordinary litigants may need to wait as much as ten years to obtain a final resolution of their disputes and as a result the Italian civil process can be considered as useless to citizens who seek justice”. The above findings cannot lead to the assumption that Civil law is in its major part a failure, however there are many parts of this legal system that need to be transformed in order for this system to become effective (Calabresi et al., 1972, McCormick et al., 1997). On the other hand, in accordance with Zimmermann (2002) Italian legal system – as formulated under the influence of Civil law – has a series of procedures with particular characteristics and it is perhaps for this reasons that the above system is too slow regarding the provision of legal protection. One of the most significant parts of Italian legal system has been the prescription period. The particular issue has been treated very carefully by the Italian law. The transformations that have been applied in the specific legal area are noticeable. For this reason it is noticed by Zimmermann (2002, 87) that “if we look at the development of the law of liberative prescription, at new enactments and proposed drafts, we find a number of trends that have arisen over the past hundred years; a similar regime (general prescription period of ten years with exceptional, shorter periods for a range of important claims) prevails under the Italian codice civile (1942)”. In other words, the developments occurred in the Italian law regarding specifically the prescription period can be considered as necessary if taking into account the weaknesses that the country’s law presented previously in the particular field. There are also different views as of the reasoning of the relevant transformations. In this context, Zimmermann (2002, 134) noticed that “there is a considerable divergence of views as to whether it is possible for parties to contract out of the prescription. regime by lengthening or shortening the prescription period, by providing for different starting dates, by introducing additional, or opting out of existing, grounds for suspension, etc. Swiss, Greek and Italian law are particularly strict in this regard: they prohibit agreements either way”. In other words, the transformations taking place in the Italian legal system regarding the prescription period can be considered as an indicative example of the improvements that have been made in the country’s legal system in order for this one to become more effective. However, there are still many parts of the Italian legal framework that need an extensive transformation. The delay in all sectors of legal procedure is one of the most characteristic examples of the above situation. More specifically, it has been found by Chiarloni et al. (1999, 23) that “the duration of civil proceedings in Italy is measured in years rather than months; although the average duration of first instance proceedings is 3.3 years, the appeal process can stretch the final resolution of disputes by several more years; sadly, it is not uncommon for plaintiffs to be forced to wait 10 years for final judgment”. If we take into account that the major part of cases brought before the Courts in Italy involves in car accidents (nearly one third of the civil cases, Chiarloni et al., 1999, 23) we can understand the emergency character of the legal reform needed in Italy especially in the area of legal procedures taking place before the country’s Courts. IV. Comparative analysis of English and Italian Civil Law The differentiation between civil law and common law has been the main issue of conversation in most areas of legal practice around the world. In fact, the research of Lupoi (1999, 967) proved that “the so-called dialogue between civil law and common law was the basic feature of post-World War II comparative law; all civil law countries belonged to one family and all common law countries to another”. This differentiation continues to exist but not at this level. Differences between these two major legal systems have begun to be limited in accordance with the legal needs of the countries involved (Bueno de Mesuita et al., 1995, Gibbons, 1982). On the other hand, issues that have been considered as advantages for one of the systems, they can easily become disadvantages throughout the years. In this context, the study made by Deffains et al. (2001, 208) proved that “one of the characteristics of civil law is that uncertainty, complexity and asymmetry of information is supposed to be reduced as compared to common law; that characteristic results from the codification of law, the limitations of jurisprudence, and centralization of the judicial system in opposition to a common law system characterized by a collection of disparate doctrines largely judge-made in a decentralized fashion; a second important characteristic of civil law countries is that legislators are relatively more important than judges in determining the criminal system”. Today, as already mentioned above the superiorities of both civil and common law have been reconsidered as of their real extension and applicability. More specifically, the primary role of judge in the common law countries has been re-examined and limited under the intervention of legislator who has acquired increased authorization in the creation and transformation of law in the common law countries. On the other hand, the speed in the completion of legal proceedings that has been once the major advantage of civil law has been limited and almost all countries in continental Europe (where civil law is the main legal framework applied) including Italy are facing a significant delay on the completion of legal proceedings mainly the ones taking place before the Courts (Rubin, 1977). Another issue that should be examined in the context of comparison between the British and Italian legal systems (as representatives of the common law and the civil law equally) is the law enforcement. For both countries criminal law enforcement should be considered as the fundamental tool of enforcement while the private enforcement is also applied however within limited borders. On the other hand, it is noticed by Deffains et al. (2001, 211) that “the history of English criminal law and its administration is substantially different from that of (continental) Europe; England has a tradition of private enforcement whereas civil law jurisdictions have a tradition of public enforcement; in principle, private enforcement can be more efficient than public enforcement”. In other words, the use of private enforcement in England has to be regarded as an advantage for the country’s legal system if compared with the Italian legal system which is based on the public enforcement (as all countries belonging in the civil law area). On the other hand, the use of case law in the legal proceedings before the Courts has to be regarded as a major advantage of the English legal system. In fact Case law is the basis for the legal proceedings before Courts in all countries following the common law system. According to the study of Geldart (1995, 14) the main principle of Case law “is the rule that decided cases are binding authorities for the future”. For countries belonging to the Civil law, like Italy, France and Germany “the judge, in his application and interpretation both of enacted law and of the general principles which will always underlie and supplement enacted law, is not bound by previous decisions of the same or any other court, but is free and indeed is bound to decide according to the best of his own judgement” (Geldart, 1995, 14). In other words, in the countries mentioned above the judge has an increased discretion to interpret law in accordance with his personal view using cases just as supplementary material for the formulation of his opinion (Mattei, 1997). On the other hand, there are provisions that are common among countries even if they belong to different legal systems. In this case it has been found by Zimmermann (2002, 134) that “in countries like France and England the principle Agere non valenti non currit praescriptio requires prescription not to run against a creditor who is subject to an incapacity; the paradigmatic example is the minor; he is unable to pursue his claim in court”. On the other hand, there are countries like Germany, Greece and Italy where it is being accepted that the minor would require protection only when “he is without his/ her legal representative adult (parent or guardian) capable of bringing proceedings on his behalf” (Zimmermann, 2002, 134). In the above case, the acceptance of different legal systems (cases of France and England) has not prohibited the development of common legal practices by the relevant countries. V. Conclusion The issues developed above can lead to the assumption that the differences between Common law and Civil law are not in fact so important for the development of a country’s legal framework in accordance with its needs (Ehrlich, 1982). In fact the acceptance of a particular legal system by a country can lead to severe problems if the rules of this legal system are proved ineffective for the particular country. As an example, Chiarloni et al. (1999) refer to the case of Italy where “only a small proportion of actions ends in a judgment on the merits while most are abandoned; thus, in 1994, of 1,080,933 concluded cases, only 376,546 proceedings (about 35 per cent) ended in a decision on the merits; this is chiefly due to the excessive delays”. In other words, the acceptance of Civil law by Italy has not helped the country to resolve the problem of delay in the legal proceedings especially those taking place before the country’s Courts. This finding cannot lead to the assumption that Civil law is in its total useless, however it should be transformed in order to suit to the particular country’s demands. As its current condition, the Civil law in Italy presents several problems, actually more than the ones faced by Britain. More specifically, the study of Chiarloni et al. (1999, 23) showed that currently in Italy “many litigants would rather accept a disadvantageous settlement, however unfair, than wait for years to have their claims heard; procedural complexity is a major problem; yet the majority of those who operate the justice system favour the slow bureaucratic stages of ordinary proceedings”. In other words, the problems of legal procedure in Italy would be considered as the result rather of the absence of appropriate provisions for the effective adaptation of Civil law on the country’s legal framework rather than weaknesses of the Civil law in general. 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