Judges and the law
Judges and the law

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Judges and the law

8 Part G Common law and civil law systems

8.1 The differences between common law and civil law systems

Having explored the origins and development of the common law and its characteristics, the final part of this course will compare and contrast the common law with civil legal systems.

The terms common law system and civil law system are used to distinguish two distinct legal systems and approaches to law. The use of the term ‘common law’ in this context refers to all those legal systems which have adopted the historic English legal system. Foremost amongst these is, of course, the United States, but many other Commonwealth and former Commonwealth countries retain a common law system. The term ‘civil law’ refers to those other jurisdictions which have adopted the European continental system of law derived essentially from ancient Roman law, but owing much to the Germanic tradition.

The usual distinction to be made between the two systems is that the common law system tends to be case-centred and hence judge-centred, allowing scope for a discretionary, pragmatic approach to the particular problems that appear before the courts. The law can be developed on a case-by-case basis. On the other hand, the civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both these views are extremes, with the former overemphasising the extent to which the common law judges can impose their discretion and the latter underestimating the extent to which civil law judges have the power to exercise judicial discretion. It is perhaps worth mentioning at this point that the European Court of Justice, established, in theory, on civil law principles, is, in practice, increasingly recognising the benefits of establishing a body of case law. Although the European Court of Justice is not bound by the operation of the doctrine of stare decisis, it still does not decide individual cases on an individual basis without reference to its previous decisions.

Activity 17 Common law

Timing: 0 hours 25 minutes

This activity builds on what you have just read about the differences between the systems of common and civil law. It is an extract from the BBC Radio 4 Unreliable Evidence programme broadcast in 2004. While listening, you may want to take notes. Listen in particular to what is said about the relationship between common law and civil law systems.

'Common law' part 1

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Transcript: 'Common law' part 1

MISHAL HUSAIN
In England the legal system is based on common law. Over the centuries English judges have unified and developed laws using a system of precedent and established practice. Bycontrast in the rest of Europe, civil law forms the basis of most legal systems. Civil systems generallyfeature a code setting out basic rights and duties and in some cases can be traced right back to Roman law. In 2004 the BBC's Unreliable Evidence set out to explore the differences between the two systems. Here's presenter Clive Anderson introducing his panel of experts.
CLIVE ANDERSON:
To discuss laws common and uncommon, civil and uncivil, I am joined by Conrad Schiemann, one of the English judges at the European Court of Justice. Hugh Mercer is a barrister specialising in EU competition law, public and private international law. He has appeared in cases involving the European Commission. Professor Basil Markesinis who has joined us on this programme before is a leading expert on comparative law. Professor John Bell is another distinguished academic expert, currently professor of law at Pembroke College, Cambridge. Well, a distinguished panel. Professor Markesinis, how would an ordinary person, maybe an ordinary litigant recognise the difference between a court with a historical basis as a civil law or the common law?
PROFESSOR BASIL MARKESINIS:
I would have put it in this way, the oracles of the law, the people who tell us what the law is are in the continental European systems are the academics and the universities, and in the common law system are the practitioners and the judges. And that's a very important difference because academics go for system and logic and structure and theory, and they therefore tend to be system builders. Whereas our lawyers are practitioners. They look for the problems and they try to find the right remedies. So they are problem solvers.
CLIVE ANDERSON:
What sort of analogy would be drawn there between the way perhaps a town or a city might develop in England, using old roads and gradually building up as opposed to one, a new town which was laid out on a grid pattern.
PROFESSOR BASIL MARKESINIS:
Yes, I think it's true to say that our system has developed incrementally without the kind of sort of structure that the European systems had from the beginning largely for the reasons you said. The inheritance of Roman law. But these differences are being attenuated in practice and gradually I think we're all moving together. There's a give and take, we are adapting to their ideas and they are taking many of ours.
CLIVE ANDERSON:
Can I just talk to Professor John Bell at the moment. Now I've mentioned that under the civil law system greater respect is given to academic lawyers. Do you look forward to your views as a professor of law having more weight possibly with English judges as they approach their judging?
PROFESSOR JOHN BELL:
Well certainly some English lawyers are having considerable weight with English judges already. And I think the pattern in what are called civil law systems is actually quite variable. In the areas that I specialise in which are administrative law and public law, most European systems are actually judge made in developed principles often the main doctrinal writers are practitioners and not academics.
CLIVE ANDERSON:
So there's a distinction there?
PROFESSOR JOHN BELL:
So that, so that - that blurs the distinction. I think it depends very much on the branch of law that you're operating. In private law that has tended to be developed from Roman law. Those principles were taught first in the universities and then exported to the practitioners. In public law which is the base for the European Convention on Human Rights and also in constitutional law which relates as much to the European Union as well, there are influences very much from the practitioners, and there's a debate between the practitioners and the academics which is a very fruitful one. So I think what is happening already is that within the civil law systems there is much more of a mix than perhaps is characterised by the stereotypes that we often use.
CLIVE ANDERSON:
Well Hugh Mercer is a practitioner in this area of the law and is anxious to say something.
HUGH MERCER:
If one looks at the European Court of Justice where of course Judge Schiemann sits, this court since, particularly since 1973 has built up what is equivalent to a common law system. A system built up on decided case law. Influenced by academics but academic writers possibly don't have quite the same force as they would in the standard civil law system. A case which came to mind was the Trans Oceanic Paint case, one of the early cases on the right to be heard. The European Commission had taken a decision granting an exemption to a company with a particular condition attached to the exemption. And the company concerned had not been consulted on the content of the condition. And Advocate General Warner, the British advocate general of the time looked at the different systems, found the French and Belgian and Italian systems essentially lacking on this point, and lifted the [LD alder impartum?] rule from English law and then applied that as a rule of community law.
End transcript: 'Common law' part 1
'Common law' part 1
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'Common law' part 2

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CLIVE ANDERSON
A very English sounding rule that he brought in. Anyway you're painting a good picture there of the relevant of the law. But can I just ask Judge Schiemann in the European Court of Justice, does it make any practical difference to you sitting as a judge there? Does, have you had to adapt your judging ways to fit in with the European way of doing things?
CONRAD SCHIEMANN
Oh very much so, indeed. The position here is very noticeably different at first blush in procedural terms because of the language problems. We are now a community of nineteen different languages which means that we may be addressed in any one of nineteen different languages in court with simultaneous translations which is a great inhibition in having the law hammered out in court, in the same way as traditionally has been done in England.
CLIVE ANDERSON
Well any flowery advocate would find that rather irritating to have his words translated and a rather more precise, construal of statute would equally find the arguments must tail off into translation points. Does that cause problems?
CONRAD SCHIEMANN
Yes it does. Which is why we tend to rely much more on written material which too may need to be translated but there, there is more time for the translators to get precisely the right word and also for the national judge who happens to speak that language to be able to nuance it as required. But there is a language problem which affects partly the use of the actual words but also in a rather cultural sense also sometimes the cold conceptual way of talking. I think when I came here first there was a slight amusement at the fact based approach which the British have tended to bring to the court to move from the facts of a case to deciding the principle, rather than doing what in some ways strict theory requires one to do, namely to consider the point in the abstract which is perhaps more in the French tradition.
CLIVE ANDERSON
So you're perhaps reinforcing the notion that the English legal system is what? More down to earth, more robust, less addicted to fancy theories?
CONRAD SCHIEMANN
Well, all this can be exaggerated. At the end of the day all our societies face very much the same type of tensions which it's the function of the law to resolve. Tensions between freedom of contract and protection of the consumer. Let money lenders fix what rates they like or lay down maximum rates. That goes back to the Romans. Tensions between freedom to demonstrate and freedom to walk along the road. Tensions between freedom of the legislator to lay down laws and the desire to protect the minority of the moment against oppression by the legislator. And we all tend to come up with very much similar examples, albeit by slightly different processes.
CLIVE ANDERSON
Professor Markesinis, would you say there's another - what could we describe as a convergence of between the various European systems, the English system, French, German and everything. Are they all going to come together under sort of body of European law?
PROFESSOR BASIL MARKESINIS
I would most definitely think that that is a convergence. It's a gradual convergence, it's an incremental convergence which actually suits our mentality, our legal mentality. And the reason why it's there is very simple. We see a convergence in tastes, in habits. Everyone nowadays drinks cappuccino instead of tea. We wear the same clothes, drink Coca-Cola, eat Mcdonald's, the tastes, the customs, the habits are changing, and so is the law. But in addition to that you have the globalisation phenomenon. You have the fact that more companies are operating across borders and of course where companies go, lawyers usually follow.
CLIVE ANDERSON
Professor John Bell.
PROFESSOR JOHN BELL
I would add two things to that. Firstly in public law we have very common rules in the European Convention on Human Rights where people work together as a team in the court in Strasbourg to try and create rules which can apply to different countries. So that we are looking at cases now in England which are bits of litigation in Austria or in Turkey. So that's one thing. And the other thing is the importance of legal education and the way in which now we have elements of legal education which are common and students who study in different European universities are coming from different European countries and beginning to understand each other socially as well as legally and that creates a body of people who are able to work together to build a further European - a legal system
CLIVE ANDERSON
And so as a body of European law that's going to be developed do you think?
PROFESSOR JOHN BELL
Well there will also be national laws that will be different. There will be experimentation, there will be procedures that are different. But there are common values, there are common ideas. How we work those through in practice is often going to be different. Just as within the United Kingdom we're used to the Scots and the Wel h and the Northern Irish doing things differently say in education from the English.
MISHAL HUSAIN
Fascinating to learn from that discussion how the English common law is changing and developing because of a cross-fertilisation with civil law systems.
End transcript: 'Common law' part 2
'Common law' part 2
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Discussion

The discussions ended with the conclusion that neither system would extinguish the other as both had useful features. What was in fact happening was that the two systems were adapting features from each other. You may also have found it surprising to listen to the discussion of the backgrounds of some of the members of the European Court of Human Rights, as here the contributors clearly had different views.

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