The common law and the civil law

[onemoretime]

In the Western tradition, there are two great legal schemes that have persisted to this day: the common, or English, system, and the civil, or Roman, system. Let's take a quick look at both.

The common law system is often said to be "judge-made" law, but in fact it is not - it is based on the customs and mores of the community. A judge merely decides cases based on this understanding of "the law." A key feature of this system is that judges can decide wrongly; a judgment that falls outside this set of customs and mores can be overturned on the principle that it is "not law." Judicial precedent holds great significance out of a sense of deference to previous judges' reasoning capacity and ability to draw an accurate interpretation of what the common law is.

The civil law system seeks to be a "rational" system. Instead of the law being based on custom, it is based on a previously-agreed code. This code is intended to be gapless, covering every aspect of our legal existence. Judgments are made in this system by determining what the relevant facts are (the inquisition), and once finding those facts, seeing what aspect of the code they correspond with. From there, a determination can be made of what the law is for a given set of relevant facts. Subtle legal questions are not handled by judges, but by references to the academic study of the law, while changes are solely through legislative bodies.

Thoughts on the two systems? Which do you prefer? Do they correspond to any of the subjects we discuss on this site? Which is fairer?

 

[Kephalos]

Another important part of the civil law is that it is usual for the loser in a civil suit to pay for the legal costs of the trial, which influences the decision to sue or not.

 

[Coriolis]

I do not know enough about either system to express a preference. Our government (in the U.S.) is often characterized as a government of laws, and not men. It is said that no one is above the law. This would seem to place the law above everyone. In one sense, this should promote impartiality, since all must follow the same law. In practice, though, it seems that man (humanity) serves the law instead of the law serving man. We must all defer to the law, however stupid, ill-conceived, and outright hurtful, until the appropriate legislative body takes it upon itself to correct the situation, something that often falls victim to the desire to be reelected.

 

[Lark]

In the Western tradition, there are two great legal schemes that have persisted to this day: the common, or English, system, and the civil, or Roman, system. Let's take a quick look at both.

The common law system is often said to be "judge-made" law, but in fact it is not - it is based on the customs and mores of the community. A judge merely decides cases based on this understanding of "the law." A key feature of this system is that judges can decide wrongly; a judgment that falls outside this set of customs and mores can be overturned on the principle that it is "not law." Judicial precedent holds great significance out of a sense of deference to previous judges' reasoning capacity and ability to draw an accurate interpretation of what the common law is.

The civil law system seeks to be a "rational" system. Instead of the law being based on custom, it is based on a previously-agreed code. This code is intended to be gapless, covering every aspect of our legal existence. Judgments are made in this system by determining what the relevant facts are (the inquisition), and once finding those facts, seeing what aspect of the code they correspond with. From there, a determination can be made of what the law is for a given set of relevant facts. Subtle legal questions are not handled by judges, but by references to the academic study of the law, while changes are solely through legislative bodies.

Thoughts on the two systems? Which do you prefer? Do they correspond to any of the subjects we discuss on this site? Which is fairer?

To be honest I think in practice there will always be a mixed system, its important to have something universal and generalisable to all or most situations, on the other hand its important that this is not used as a kind of technical legalism, where people lose sight of the spirit by strictly obeserving the letter of the law.

Yeah, heard absolutely terrible stories about older men, often predatory individuals, essentially seducing younger girls and celebrating the same girls eighteenth (or whatever the particular age of majority is) birthday by having sex with them and dropping them shortly thereafter to pursue others.

That's only one example of the disgusting flaunting of good laws, I'm unsure what can be done about that besides accepting that a line has to be drawn some place, and that law is imperfect at containing and rolling back the sorts of ill behaviour which is in part established to address.

 

[Giggly]

I prefer the common law system and the appellate courts.

 

[Rajah]

I know I'm getting a lot nitpicky here, but you're not exactly accurate when you're discussing judicial precedent or the tradition of stare decisis in the common law. Judges are bound to adhere to prior decisions in certain circumstances, but they are free to ignore even directly on-point decisions in others. It depends on who issued the prior decisions. In the literature, you'll see this referred to as "binding precedent" and "non-binding precedent." Binding precedent refers to one of two things. First, it can refer to "vertical precedent," which means that lower courts must adhere to the decisions made by superior courts in the same judicial system. So that's why a lower court has to follow the Supreme Court's decisions - no matter how much that court may disagree.

Binding precedent can also refer to "strong stare decisis," which means a court has to adhere to decisions made by a prior panel of the same court in the federal appellate system.

Now, courts can accept any other on-point decisions as persuasive, but they don't have to.

In all this, the Supreme Court is viewed as the utmost authority on the law. To make its decisions, the Supreme Court relies on precedent as well as "references to the academic study of law," so the distinction between common law and civil law isn't drawn along these lines as you suggest.

The other thing is that the common law also strives to be a "rational" system. That's what stare decisis aims for - to create a systematized application of rules, so people can know what behavior is acceptable or not and what the consequences for violating legal norms are. The difference is that we give the states the right to govern themselves so that their decisions reflect local norms; that's why you get different laws in different states. Otherwise you'd violate principles of federalism.

Stare decisis, incidentally, isn't concerned with right or wrong. It is concerned with creating a system. If justice is sacrificed in one case, it's considered acceptable as long as the system as a whole is preserved.

 

[onemoretime]

I know I'm getting a lot nitpicky here, but you're not exactly accurate when you're discussing judicial precedent or the tradition of stare decisis in the common law. Judges are bound to adhere to prior decisions in certain circumstances, but they are free to ignore even directly on-point decisions in others. It depends on who issued the prior decisions. In the literature, you'll see this referred to as "binding precedent" and "non-binding precedent." Binding precedent refers to one of two things. First, it can refer to "vertical precedent," which means that lower courts must adhere to the decisions made by superior courts in the same judicial system. So that's why a lower court has to follow the Supreme Court's decisions - no matter how much that court may disagree.

Binding precedent can also refer to "strong stare decisis," which means a court has to adhere to decisions made by a prior panel of the same court in the federal appellate system.

Now, courts can accept any other on-point decisions as persuasive, but they don't have to.

In all this, the Supreme Court is viewed as the utmost authority on the law. To make its decisions, the Supreme Court relies on precedent as well as "references to the academic study of law," so the distinction between common law and civil law isn't drawn along these lines as you suggest.

The other thing is that the common law also strives to be a "rational" system. That's what stare decisis aims for - to create a systematized application of rules, so people can know what behavior is acceptable or not and what the consequences for violating legal norms are. The difference is that we give the states the right to govern themselves so that their decisions reflect local norms; that's why you get different laws in different states. Otherwise you'd violate principles of federalism.

Stare decisis, incidentally, isn't concerned with right or wrong. It is concerned with creating a system. If justice is sacrificed in one case, it's considered acceptable as long as the system as a whole is preserved.

Max Weber, William Blackstone, and Oliver Wendell Holmes disagree.

 

[Rajah]

Max Weber, William Blackstone, and Oliver Wendell Holmes disagree.

With which of the paragraphs? The long-standing principles of stare decisis?

And this is a rather unamazing proposition, but legal scholars disagree. What I said, though, is pretty first-year law school stuff.

 

[Haight]

Max Weber, William Blackstone, and Oliver Wendell Holmes disagree.

I think citing a Jew, a Jewish sympathizer, and another Jew is diminishing the credibility of you argument.

 

[onemoretime]

With which of the paragraphs? The long-standing principles of stare decisis?

And this is a rather unamazing proposition, but legal scholars disagree. What I said, though, is pretty first-year law school stuff.

You're right, it absolutely is first-year stuff. Which is why it's completely wrong.

 

[Rajah]

To be honest I think in practice there will always be a mixed system, its important to have something universal and generalisable to all or most situations, on the other hand its important that this is not used as a kind of technical legalism, where people lose sight of the spirit by strictly obeserving the letter of the law.

Judges can still adhere to the principles of stare decisis and impose their will on the law. This is why judges carve out exceptions and niches so they're not required to decide a case "wrongly." When you're looking at the purest rationale for stare decisis, though, you're looking at systematized application and consistency. Period.

 

[Rajah]

You're right, it absolutely is first-year stuff. Which is why it's completely wrong.

You care to back up what you're saying, or are you going to persist in looking like a dolt? Either way is fine with me.

 

[StrawMan]

In the Western tradition, there are two great legal schemes that have persisted to this day: the common, or English, system, and the civil, or Roman, system. Let's take a quick look at both.
...
The civil law system seeks to be a "rational" system. Instead of the law being based on custom, it is based on a previously-agreed code. This code is intended to be gapless, covering every aspect of our legal existence. Judgments are made in this system by determining what the relevant facts are (the inquisition), and once finding those facts, seeing what aspect of the code they correspond with. From there, a determination can be made of what the law is for a given set of relevant facts. Subtle legal questions are not handled by judges, but by references to the academic study of the law, while changes are solely through legislative bodies.
Thoughts on the two systems? Which do you prefer? Do they correspond to any of the subjects we discuss on this site? Which is fairer?

Subtle legal questions (questions not directly answered by the code) are in practice handled by the Supreme Courts in many civil law countries. Only if a ruling of Supreme Court can not be extended to a specific situation, or a part of it, would a reference to academic study be taken seriously by courts. Judges are in theory allowed to rule against an applicable supreme court ruling, but the appellate courts would just "correct" the decision.

So, the systems in my opinion are not so far from each other. Common law lawyers study more cases, but the subtler questions are decided by higher courts in both systems.

 

[onemoretime]

Subtle legal questions (questions not directly answered by the code) are in practice handled by the Supreme Courts in many civil law countries. Only if a ruling of Supreme Court can not be extended to a specific situation, or a part of it, would a reference to academic study be taken seriously by courts. Judges are in theory allowed to rule against an applicable supreme court ruling, but the appellate courts would just "correct" the decision.

So, the systems in my opinion are not so far from each other. Common law lawyers study more cases, but the subtler questions are decided by higher courts in both systems.

Certainly, convergence has been the practice in reality. The common law has undergone large codifications in those countries as well.