Compare common law /civil law
Characteristics
Jurist vs. judge
National identity
Dichotomies
Public law vs. private law
Civil law vs. commercial law
Appraisal of civil law
What does “civil” mean?
Civil practice
Civil procedure
Civil law
Civilian court
Pope Gregory Receiving Canon Law (Stanza della Segnatura)
Compare common law /civil law
Process of national unification
Common law:
Civil law:
Check on judicial arbitrariness
Common law:
Civil law:
Unification actors
Common law:
Civil law:
Compare common law /civil law
Process of national unification
Common law: unifying force in England (1066)
Civil law: codes (citizens’) on Continent (1804)
Check on judicial arbitrariness
Common law: jury, stare decisis
Civil law: written legislative law / ancien regime
Unification actors
Common law: bench and bar
Civil law: university-taught writers / professors
Hugo Grotius (1583-1645)
Dutch legal scholar, playwright, poet
natural law philosopher
"social contract" theory of State
seas free for mutual benefit of all
Father of “international law”
"property" from social consent
nothing "inalienable” about it
Lord Mansfield (1705-1793)
Chief Justice of England
King’s scholar - Oxford (1726)
called to bar, notoriety (1730)
House of Commons (moderate)
chief justice king’s bench (1756)
six reversals in 32-year career
founder of commercial law
(nearly all principles)
Compare common law /civil law
Civil law
Roman-influenced
University-taught,
professor-inspired
Formed across continent
(ius commune / Latin)
Distrust of judicial power
Dichotomies
Public law vs. private law
Civil law vs. commercial
law
Common law
Local customs (some
Roman)
Judicial / bar
Centralized government
(royal courts)
Respect for judges
Dichotomies
No public law in England
Common law adapts to
changing economy
What is public law? (in civil law tradition)
Roman law (Ulpian):
quod ad statum rei Romanae spectat (that which refers to the
condition of the Roman state)
Ad singulorum utilitatem (private interests of individual) –
focus of Justinian Digest, Institutes
Expanded as jurists move throughout Europe
legislation, public officials, procedure, tax, public duties
Become dependent on sovereign
National constitutional law / administrative law
Constitutional republics
Social legislation and specialized courts
Public law in England
Public authorities subject to common law
jurisdiction
Habeas corpus, mandamus
Tort actions against public figures
Review of administrative acts
No Constitution
Omnipotence of Parliament
Separation of powers: no judicial review
Compare common law /civil law
What does Venice have
to do with the common
law of England?
Who wrote the
“Merchant of Venice”?
What is commercial law?
Roman law unsuitable for commercial disputes
Limits on freedom of contract, acting through agents
Protection of debtors / usury rules
Slow procedure
Medieval customary law (law merchant)
Developed by guilds and corporations
“traveled” with merchant (choice of law)
Guild (later merchants) elect own judges
Procedure: like arbitration
National commercial law
Civil law rules based on law merchant
Freedom of contract, alienability
Ex aequo et bono: According to what is right and good.
Separate commercial code / courts (public choice)
English common law
Absorbs law merchant in 17th and 18th Centuries
Negotiable instruments
Inductive, practical, non-scholastic
Lex Mundi Project
Law firms from 109 countries responded to
questionnaires –
Describe claims (eviction and check collection)
Characteristics of parties and merit of positions
Not reading of laws / actual practice
Lex Mundi Project
Do common law or civil law courts enforce contracts
more efficiently?
Landlord evicts non-paying tenant
Creditor collects bounced check
Enlightenment idea: court access to ordinary citizens
Measure deviation from simple neighbor model
Formalism -- Quality of justice
Quality of justice -- Legal system
Lex Mundi Project
Measure formalism
Access: need for lawyers, formalities to bring
Ease: oral vs. written procedures
Legalism: need for justifications
Information: regulation of evidence
Superior review
Count # procedural steps
Measure quality of judicial system
Duration of proceeding
Fairness, consistency, honesty (survey small firms)
Identify types of courts (transplanted legal systems)
Lex Mundi Project
Findings (formalism):
1.
2.
3.
Legal origins explains 40% of formalism
Formalism prevalent in civil law countries
Formalism greater in less developed vs. richer countries
Findings (quality – per capita income constant):
1.
2.
Formalism predicts duration of eviction, check collection
Formalism correlated to less access, higher judicial
inefficiency, higher corruption, less fairness
Lex Mundi Project
“Consistent with the literature on comparative law,
we find that judicial formalism is systematically
greater in civil law countries, and especially French
civil law countries, than in common law countries.”
“Formalism is nearly universally associated with
lower survey measures of the quality of legal
system, including judicial efficiency, access to
justice, honesty, consistency, impartiality, fairness,
and even human rights.”