Civil and Common Law Systems

Why compare?

What to compare?

How to compare?

• 'Same problem, different solutions'
• Understanding foreign law 'from the inside' -- why do members of that system think the way they do?

Ius Commune -- from Corpus Iuris -- following re-discovery of Justinian's code

Glossators

• annotations on CI -- clarify; give context; correct inconsistencies
• written reason
• accumulation of glosses formed defined body of doctrine

Post-Glossators

• adapt Roman texts to particular requirements of medieval life -- bridge theory and practice
• comprehensive and systematic commentaries on specific legal issues
• new, improved version of CI produced

Roman law and Canon law

School of Secular Natural Law

• significance of CI lay in its moral quality -- CI as raw materials to build perfect legal system
• REASON

French revolution -- epitomised rationalistic dualism of natural lawyers

Republic built on rational ideas -- reason-infused CI preserved; oppressive feudal customs eradicated

Civil Code 1804

• Romanist, canonist and rationalistic influences
• grounding in law of nature
• repeal of all prior law and formal declaration that extra-codal legal materials would be considered of no legal force
• Code ought to be complete
• ought to be drafted in relatively general principles
• ought to fit them together lgoically as coherent whole and be based on experience
• piecemeal modernisation
• articles are not only rules of law but sources of law
• 'civil constitution'
• written code as guarantee of freedom
• Book I 'Of Persons'; Book II 'Of Property and...ownership'; Book III 'Of the various ways in which ownershp is acquired

Ius commune

Kant's theory of knowledge 

• acquisition of knowledge proceeds from interaction between subjective & objective
• law, while grounded in morality, demarcates itself from moral realm int hat it concerns eternal relations between subjects and must accordingly be objectified through actual, material sanctions

German historicists

• ought not ignore history
• facts overtake ideas
• 'objective idealism' -- Hegel -- mind and matter merge into the objective
• theory is subservient to facts, and reasoning that aspires to operate independently from factual experience is ill-conceived
• Historical school
• Volkgeist

• idea/fact tension manifests itself
• Privatautonomie = celebrates subjective -- freedom of each individual to govern himself through hisown will
• tempered by imposition of constrants upon way in which this freedom can be exercised -- only those acts of will that are deemed acceptable in the larger context of German juridical order ever materialize as legal facts
• balance of subjective and objective
• more academic and exhaustive -- much longer process to make
• infiltration of public into private

Development of common law

• William the Conqueror
• integrated local customs and isntitution into single admin structure governed by King
• Domesday book (1086) 
• Royal intervention into local justice at first limited to tax matters, but fiscal considerations soon caused this to extend to civil and criminal matters
• end of 12th century -- ambulatory justice system that Henry I had established had by regularity and increased frequency of its circuits become most powerful institution in ENG
• 13th century -- royal justice grew from occasional jurisdiction into highly solicited one -- 3 permanent courts in Westminster
• early common law was procedural 'common custom' concerned almost exclusively with matters of proof -- empty procedural framework to be filled with substance by jury
• identity of those in charge of administering justice -- not conceptual thinkers
• ideas still present in every judicial decision -- in time extricated themselves from material, heavily procedural context of decision -- formed substantive legal rules

Equity -- operate like continental court -- flexible and not formally bound by precedent -- less important -- Judicature Act stripped equity of separate jursidiction and merged it with CL

French

• subjective representation
• any non-trivial mistake in mind of even on of two parties suffices to undermine existence of validity of contract
• set aside in all such cases as matter of principle
• logic of autonomy of will dictates that mistaken party's subjective intention trumps non-mistaken party's objective interpretation of this intention
• French judicial practice is more qualified -- 'exceptions' and 'qualifications'

German

• balanced approach -- equal weight to subjective intentio and objective manifestation
• only set contract aside where mistake related to an essential part of contract

English

• objective approach
• general theory of mistake in aassumption has no place in English law
• only exceptionally have judges allowed subject intentions to prevail over obj manifestations

France

• apply law in mechanical fashion -- avoid interpretation -- reserved for scholars
• reasoning by syllogisms
• decisions tend given consideration only insofar as they corroborate conclusion of scholars
• anonymous decisions without dissent nor concurring opinion
• extremely short judgments that lack explanation of why the decision has been made
• not an official source of law

Germany

• decisions are less cryptic and more readily indexed and more accessible
• Code provides as much direction as an be given w/o excessive complexity
• greater importance of disclosing reasoning

England

• reasoning by analogy -- begins and ends with fact
•  judicial prcedence
• more important role -- judges work with facts

France

• subjectivism
• ideas, not facts
• judges less important
• Civil Code

Germany

• balance of subjectivism and objectivism
• BGB

England

• objectivism
• facts, not ideas
• judges are very important
• Common Law

French judicial profession

• career judges
• law school -- Ecole Nationale de la Magistrature -- civil servants for life -- train judges and procecutors -- most candidates recent university graduates
• 31 month full time course -- written and oral exam & interview 
• begin in court of first instance and hope to be promoted to higher courts

English judicial profession

• not career judges
• law school -- join the Bar (normally) -- become QC -- apointed to HC -- work way up from there
• from narrow group of society -- later stage of career so older
• lay persons working as magistrates