The Differences Between Civil Law and Common Law

1. According to Raoul van Caenegem (Judges, legislators, and professors) (with comments by CD).

1. The ambiguity of the term ‘law’—goes back to the Danes. Does it reflect any real ambiguity of thought?
2. Appeal: a recent development. This is a fact; the history suggests that its importance can be exaggerated.
3. English law is ‘a seamless web’—the importance of the codes being perceived as a break with the past. This is a fact; our contemporary situation suggests that it may not be that important.
4. The rule of exclusion—the dislike of legislation. Can this really be said to be true any more?
5. A land without a written constitution—but that is of quite recent origins in Europe. It is also not true of the United States.
6. Consequences of parliamentary absolutism (no judicial review) (Germany has it; Belgium doesn’t). Again, this distinction may be important but can hardly be called an Anglo-American vs. Continental distinction.
7. The haphazard development of substantive criminal law. This has has largely been removed in the United States by the abolition of common-law crimes.
8. Prosecution and verdict in criminal trials. The procedural distinctions in criminal law are important; whether they will remain is problematical.
9. A law uncodified—rehearsal of the 19th c. codification debate and noting the influence of Roman law and of opposition to Bonaparte.
10. Jurists as dispensable. It is remarkable how many of these so-called fundamental distinctions are no older than the 19th century. Hence, it is not surprising that VanC spends the rest of the book on this last distinction.

2. Van Caenegem’s possible explanation for the last:

1. National spirit—in addition to all the usual problems with defining what we mean by ‘national spirit’, we have a chicken and egg problem.
2. Authoritarianism vs. democracy—but English law is not democratic it is oligarchic.
3. Political explanation—the power of the judge or the legislator fits an oligarchic country, the professors’ law fitted the chaotic situation of northern Italy, 16th–19th century Germany, Holland in the days of Grotius, France of the coutumes, what do these places have in common?, in most weak central authority, in France where the central authority was strong it didn’t get going until later than in England so there was no unified custom, after the exegetic school of the 19th century the professors take over again in the civil law countries.
4. The problem with this explanation is that it may fit England, but it doesn’t really seem to fit the United States.

3. There’s one more difference that I’d like to add one that I think is quite important: the first year of legal education. Factual analogies vs. statutory analogies.
4. According to Alan Watson (The Making of the Civil Law [1981])

1. Codification
2. The role of the jurist
3. The style of deciding cases (relative absence of citation of previous cases; attempt to decide in strictly deductive fashion; bare recital of the facts; little or no consideration of policy)
4. Separation of civil from commercial law
5. Separate tribunals for administrative and private law

The Historical Question: Why did western law develop in the way in which it did?

1. Roman law, the ius commune generally, and movements in legal thought

1. The structure of the Institutes
2. Romano-canonical procedure
3. The consent theory of marriage and theology
4. Humanism and the move to natural law

2. The rise of the national territorial state

1. The use of the ius commune to bring customary law and customary jurisdictions to a single national rule—wild animals and witnesses
2. The power of the nation-state to pull down an element of the ius commune to the national level—marriage

3. The role of economic forces

1. Commercial law
2. Wild animals in terms of economic winners and losers

4. The role of social forces

1. Family structure and the law of marriage
2. The law of marriage and family structure

5. When will exogenous forces prevail and when endogenous? The definitional argument for those who are argue that exogenous forces play no role.
6. The role of individuals

1. Those who have political power: Justinian, Alexander III, Louis IX, Napoleon
2. The intellectuals: Irnerius and Gratian
3. The practicing lawyers: Michel de l’Hôpital, Jean Baptiste Colbert, Henri-François d’Aguessau

7. The role of political theory

1. It is rarely the sole preserve of lawyers
2. It is important within schools of lawyers

8. What will happen in an ‘era of decodification’?