Requests
Hey, Pajama Guy, will this blog have any year-end awards? It might be fun. Why don't you create some? ChicagoGuy (who must have New Year's Day off) and I could respond.
Now onto another request. A reader has asked what's the difference between common and civil law. Like many legal questions, the basic answer is actually pretty easy, even if many lawyers would like to pretend it's a mystery. Of course, my answer will also be oversimplified and thus useless for any deep (or graded) discussion.
Common law is judge-made law. It's law that's been created over the years by jurists and their numerous precedents which continue to be respected. It's law by accretion, rather than creation directly by statute. The British system is common law, as are many of their former colonies, including the USA. At present, in every country I've aware of with a common law tradition, this law has been codified into statutes.
Civil law is used in continental Europe and pretty much everywhere else with an organized court system. It's law that's specifically written down as a code with basic rules and principles for running a society. Civil law was originally Roman law and has been modified by many legal scholars since. In the past few hundred years, the specifics of this code have been greatly changed in many different ways in many different countries (whereas a few hundred years ago much of Europe shared a similar civil law).
The main difference in how common law and civil law societies operate is in how the courts approach the law. In civil law countries, the code is seen as the basic source of law, whereas in common law countries, judge-made law--precedent--is at least as important as the statutory law. Judges in civil law countries will explain their reasoning but generally not site previous cases. A popular example to demonstrate what civil law is like is an umpire, who determines how baseball rules should be applied, but doesn't care what previous umpires have done in similar situations.
A number of places have an official mix of both common and civil law. (I think Louisiana is am example, where they've had American common law mixed with the French Napoleonic Code.)
However, the truth is, in the real world, the distinction between the two systems is harder and harder to maintain. Common Law countries have legislatures that pass reams of laws that specifically state what must be done in both general and specific situations, and often overturn long-held common-law rules. Meanwhile, though civil law courts may keep up the pretense that it's legislatures who make laws and courts who interpret them, there is simply no way to "interpret" the law without creating new rules and applications that fill in what legislatures by necessity will leave out; furthermore, many courts in civil law countries are quite mindful of past cases.
There are secondary differences between civil and common law, some would claim, such as differing emphases on society versus the individual, but I question if these differences are consistent or meaningful.
posted by LAGuy @ 1:54 AM
6 Comments:
Thanks. I was drawn to this question after reading that four economists did analysis of which legal systems had better economies, concluding that in general a common law system worked better. Have you heard about this?
See: http://www.legalaffairs.org/issues/January-February-2005/feature_thompson_janfeb05.html "Using sophisticated mathematical models, a group of four economists has proven that a country's legal history greatly affects its economy. At least they think they've proven it. How their sweeping theory has roiled the legal academy." and "According to research published by a group of scholars beginning in 1998, countries that come from a French civil law tradition struggle to create effective financial markets, while countries with a British common law tradition succeed far more frequently. While the scholars conducting the research are economists rather than lawyers, their theory has jolted the legal academy, leading to the creation of a new academic specialty called "law and finance" and turning the authors of the theory into the most cited economists in the world over the past decade."
LA Guy believes there is no difference between interpreting and writing laws. The difficulty in drawing the line is easy enough to understand, but what does LA Guy believe is the difference between the courts and the legislature? None at all? Though many will disagree, it's a Left position to believe so, not so much because the Right won't use the courts when it can, but because when you believe government has no limits and is inherently good (so long as your guys are in charge) then it doesn't really matter which agency effects it.
Regarding the first comment, I have not read this research. I have to admit I'm suspicious when people make such a grand claim. I personally think that the freer the individual is to act--this includes not just free speech but free trade, etc.--the more likely the society is to be prosperous. A society that concentrates more on its bureaucracy may have other advantages, but will have a lower GDP. That said, I don't know if there's anything inherent in common law versus civil law that makes one lean more towards individual freedom; I think it just worked out, by chance, that England had a tradition of such freedom, moreso than the continent, and everything followed from that, regardless of their legal systems.
As to the second comment, courts are tremendously limited by what legislatures do, and the vast majorities of potential cases are not controversial. All I'm saying is those who think legislatures can figure everything out beforehand will soon be disappointed. The whole point of a court is to settle controversies when different parties disagree over the law, and appellate courts in particular have tricky legal disputes that have to be settled. If you don't believe in precedent or stare decisis, you can have courts settle the same problems thousands of different times thousands of diffent ways, to society's confusion, but it'll still feel like they're legislating in each case, especially to the loser. Posner actually deals with this at some length in his Problematics Of Moral And Legal Theory. He also believes, correctly I'd say, that for all their protestations, people want judges to settle issues by "making" law.
All I'm saying is those who think legislatures can figure everything out beforehand will soon be disappointed.It's never occurred to me that the idea of legislative incompleteness, compromise, ignorance and general nonsense obviates the idea that the function of courts and legislatures differs, importantly. Or, as you put it, renders it a "pretense" that there is a difference between writing and interpreting.
One judge I know, a clear activist, describes it as the judge's job to fill in the gaps. Whenever I refer to him now, he's Joe "The law is a gap and I'm here to fill it" Smith. (He also says it's a lucky day if the legislature has cognizance, much less intent, when it adopts laws.)
I don't know any better than anyone else what the clear line difference is, but nonetheless I have to think deference, which is to say, declining to exercise power, is the key characteristic of the judicial function. Heck, even Felix Frankfurter said so--in a work that justified the New Deal, the greatest exercise (at least, expansion) of government power we've known.
You seem to misunderstand my argument. In fact, you claim I'm making a point I never made. So let me clear things up a bit: Common Law traditions may give judges more authority than Civil Law, but in the real, modern world the differences tend to converge because A) in common law countries, everything gets codified and so many laws are passed it's the legislatures, not judges, that really decide our laws and B) there will always be many (important) parts of the law, even in a Civil Law tradition, that cannot be resolved except in court, and therefore courts will have to come down one way or another and as such will be "creating" law just as much as their brethren in common law states do. That said, my other main point was it's the legislature's world, the judges just live in it. Many American lawyers lose sight of this since they're taught by the case study method.
As to deference, many famous (and less famous) theorists have stated that it's a key characteristic of being a judge. Most US Supreme Court Justices have stated this belief. But this is no help, since while all these brilliant minds agree that deference is needed in "interpreting" the laws, they still want vastly different results once the judges start "writing," so we're back to where we started.
Au contraire, I think it is you who misunderstands my argument. You said "pretense," not me.
I'm not really addressing civil v. common, which I thought you did a fine job of, despite your modest claim that it was too general to withstand grading. My guess is it would do pretty well even as it is, much less the way it would be if you were submitting it for grading.
What I respond to is your "pretense" line re writing/interpreting. You continue to imply that the distinction is not an important and useful concept, and that is what I challenge.
You also imply, or state, that deference is a useless little bromide, sort of like a claim that we're fighting for the children or the Constitution, etc. I don't doubt at all that the person whose ox is gored, either particularly in litigation or generally in ideology, will tend to find the offending judge guilty of non-deference, regardless of the "victim"'s position or view. But I do think that it is possible, even necessary, to evaluate a judge and find that they are able to rule against positions they find to be just and desirable, before you conclude that they are indeed acting in a judicial manner. (In practical terms, obviously, this is a difficult and diffuse exercise, since part of judicial manner requires suppressing your individual views.)
Otherwise, they're just hacks like my friend the openly activist judge who rules the way he does because, doggone it, he's smart and people like him. The one thing I'll say for him is that he's reasonably frank in saying so.
Anyway, my view of what you wrote is, expound away on the difficulty of writing versus interpreting all you like, but go easy on the "pretense" stuff. It's something more than that.
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