Conditions of Competition in U.S. Markets beween Domestic ...
Difference Beween Civil and Common Law
Transcript of Difference Beween Civil and Common Law
Common law and civil law –
differences, reciprocal influences
and points of intersection
Dominik Lengeling
Law firms
Patrick Schindler /
Schleifenbaum & Adler
Toronto / Siegen
2008
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Contents
I. Introduction 3
II. Definitions and history 4
1. Civil law 4
2. Common law 5
3. Hybrid legal systems 5
III. Differences between common law und civil law 6
1. Sources of law 6
2. Principle of precedents and doctrine of stare decisis 7
3. Method of legal thinking and finding of justice 10
4. Function of doctrine 12
5. Appointment/selection of judges 12
6. Procedural differences – adversarial vs. inquisitorial /
proceedings’ purposes 13
IV. Reciprocal influences 18
1. Legal system of Scotland 18
2. The European unification 20
3. Capital market and international law firms 21
4. Maritime law 22
5. Legal system of Louisiana 23
V. Points of intersection 24
1. International arbitration 24
2. UNIDROIT Principles of International Commercial
Contracts 27
3. Legal system of Quebec 28
VI. Conclusions 30
BIBLIOGRAPHY 32
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I. Introduction
It is the intention of this paper to give an introductory overview of the relationship
between two of the most significant legal traditions, the common law and the civil
law. Such a comparative view seems particularly useful in our era of globalization
with the interconnection of the markets and the accompanying necessity of
orienting legal advice towards other legal systems. The topic seems to be also
highly relevant because of the ongoing process of European unification, which
also involves a certain degree of legal co-ordination of the English legal tradition
with that of continental Europe.
This paper makes no claim to be complete study of the topic. Its intention is rather
to raise the awareness of readers who are familiar with one of these two legal
systems about the other system by giving examples of illustrative differences
between them and also by giving examples of reciprocal influences and points of
intersection between them.
The first limitation of this paper is that it focuses only on common law and civil
law. Of course there are other significant legal traditions besides the traditions of
Anglo-American common law and Continental-European civil law, such as an
‘African legal tradition’ of sub-Saharan countries, a ‘far-east legal tradition’
consisting of China and Japan, hold together by the Confucian tradition, as well as
legal traditions that are influenced by religion, including for example Islamic,
Jewish or Hindu legal systems and also, at least until some years ago a ‘socialistic
legal tradition’.1 Furthermore it should not be overlooked, that there is not only
one law within each legal tradition – for example each Continental-European
country whose legal system is based on civil law, has its own legal system, or in
the case of Switzerland, several legal systems, one for each canton.2
1 Brand, JuS 2003, 1082 (1088); see also: Tetley, ’Mixed Jurisdictions Part I’, III. 2. (page 4).
2 Demeyere, SchiedsVZ 2003, 247 (247).
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A second limitation of this paper is that it is limited to the sphere of private law. A
research in the areas of criminal law and public law would go beyond the scope of
the paper.
II. Definitions and history
1. Civil law
Civil law may be defined as that legal tradition which has its origin in Roman law,
as codified in the Corpus Juris Civilis of Justinian, and as subsequently developed
mainly in Continental Europe.3
The civil law legal tradition itself can be divided further into the Romanic laws,
influenced by French law, and the Germanic family of laws, dominated by
German jurisprudence.4
In particular the Roman laws were modeled on the groundbreaking French Code
Civil from 1804 (Code Napoleon), which conquered Europe’s realm of ideas as
the Napoleonic armies conquered the countries.5
Also the German Civil Code from 1896 (in force since 1900) is a consequence of
the movement toward codified laws initiated by the Code Napoleon.6
It is typical of all civil law systems that the law is almost entirely codified, highly
systemized and structured and that it relies on broad, general principles, without
necessarily setting out the details.7
3 Tetley, ’Mixed Jurisdictions Part I’, III. 3. (page 4).
4 Brand, JuS 2003, 1082 (1088). 5 Brand, JuS 2003, 1082 (1088).
6 Tetley, ’Mixed Jurisdictions Part I’, IV. 3. (page 7).
7 Tetley, ’Mixed Jurisdictions Part I’, III. 3. (page 4).
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2. Common law
Common law is the legal tradition, which evolved in England from the 11th
Century onwards. This legal tradition is the basis of private law not only for
England as its country of origin, but also for Wales, Ireland, almost all states of the
USA (except from Louisiana), most part of Canada (except from Quebec) and for
most countries which received the common law tradition as former colonies of the
British Empire and in many cases preserved it as independent members of the
British Commonwealth, in parts connected with religious laws or local habits like
in India, Pakistan, Malaysia or Jamaica.8
The principles of common law appear for the most part in reported judgments,
usually rendered by higher courts, in relation to specific fact situations arising in
dispute, which courts have adjudicated. All in all common law rules seem to be
more specific and detailed in comparison to civil law rules.
3. Hybrid legal systems
In addition there are legal systems, which cannot be related clearly to either
common law or civil law, so called hybrid legal systems. In those legal systems
the law in force derives from more than one of these legal traditions, for example,
Scotland or Quebec, where the traditions of common law and civil law are
intertwined.9 These issues will be dealt with later on.
8 Tetley, ’Mixed Jurisdictions Part I’, III. 3. (page 4); Brand, JuS 2003, 1082 (1088).
9 Tetley, ’Mixed Jurisdictions Part I’, III. 3. (page 4); Brand, JuS 2003, 1082 (1088).
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III. Differences between common law and civil law
On closer examination it becomes apparent that it is by no means easy to find any
definite distinguishing features between civil law and common law. Accordingly
some suggested distinctive features, some of which do in fact distinguish these
systems, will now be analyzed.
1. Sources of law
One of the best known distinguishing features may be the particular source of law.
There is a widespread view that the two systems can be distinguished by the
assertion that common law is merely judge-made case law, while codified law is
the only source of law of civil law. Made with such absoluteness this distinction
has never been correct.
On the one hand codified law does not merely exist in common law, but is even of
a certain importance. In some areas of law codified law is even traditionally
constitutive, e.g. in the area of antitrust.10
Thus common law states have also
codified laws, which derive from a legislative process and which courts have to
consider in their judgments as well and beside existing judge-made precedents.11
On the other hand some of the Continental European legal systems’ areas of law
are entirely case law, e.g. French law of torts. In addition, also in civil law legal
systems the increasing numbers of high court decisions overlay the codified law
more and more.12
Moreover it is remarkable that there are some legal systems,
which are related traditionally to civil law, but which also as a tradition have no
classical codes as most of the civil law legal systems have. As examples may be
10
Brand, JuS 2003, 1082 (1089). 11
Handschug, ’Einführung in das kanadische Recht’, marginal number 35 (page 14). 12
Brand, JuS 2003, 1082 (1089).
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mentioned Scotland, whose legal system is however influenced more and more by
common law and therefore may better be qualified as hybrid legal system; another
example is South Africa.13
Despite this prevalent view it is clear that in both legal traditions codes do exist
and are applied by practitioners, but that these codes differ in their style:
While civil law codes and statutes are mostly concise and do not provide
definitions but state principles in broad, general phrases, common law codifying
statutes provide detailed definitions and each rule sets out lengthy enumerations of
specific applications or exceptions.14
2. Principle of precedents and doctrine of stare decisis
As another distinctive feature the principle of precedents may be considered, i.e.
the method of common law to analyze previous court decisions, to find a general
principle in each of them and to transfer these principles to a current dispute that
needs to be decided. So civil law judges may be primarily bound to codes and
reason, while common law judges are subject to the so called doctrine of stare
decisis and thus in the first instance are bound by precedents rendered by higher
courts. According to that, common law has a more hierarchical structure.
First of all, to establish some understanding, the doctrine of stare decisis should be
explained very briefly. ‘Stare decisis’ is an abbreviation of the sentence ‘stare
decisis et non quieta movere’, i.e.: stick to decisions.15
The doctrine of stare decisis has two components, a vertical and a horizontal one.
The vertical component says that judges of lower courts are strictly bound to
precedent decisions of higher courts, even if the lower court considers the decision
13
Tetley, ’Mixed Jurisdictions, Part I’, III. 3. (page 4) and Part I, IV 4. (page 7). 14
Tetley, ’Mixed Jurisdictions, Part I’, V. 8. (page 16). 15
Lundmark, JuS 2000, 546 (548).
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is not right.16
However, the inferior judges are free to express their opinion that
they consider the binding precedent as wrong and they can also suggest an appeal.
According to the horizontal component of the doctrine of stare decisis, precedents
are binding not only for lower courts, but also for current decisions of the court
that rendered the precedent, whereas although the judges are bound to the result of
the precedent, they do not have to stick to the reasons given in the precedent
case.17
A court decision is a precedent if it should be leading for all future cases; this
implies that the court decision contains an abstract guideline, which is called its
rationale and that this rationale can be ascertained by other courts and scholars.18
A precedent is binding until it is overruled by a decision of a higher court or until
it is overridden through a statute. A higher court can also reconsider and overrule
its own previous decision.19
It is remarkable – at least respecting the vertical component of the doctrine of
stare decisis – that no written rule can be found in any common law country,
which orders or enforces the binding effect of precedents.20
Only British judges
are nowadays bound to decisions of the European Court of Justice by law.21
But also this distinctive feature is not definite. On the one hand common law
judges do not have to apply a precedent, if they point out that the alleged
precedent is significantly different from the current case and therefore is not
binding. This process of pointing out the non-application of a precedent is called
‘distinguishing’ and can be mainly based on two reasons:
16 Lundmark, JuS 2000, 546 (547). 17
Lundmark, JuS 2000, 546 (548). 18 Handschug, ’Einführung in das kanadische Recht’, marginal number 31 (page13). 19
Handschug, ’Einführung in das kanadische Recht’, marginal number 31 (page13). 20
Lundmark, JuS 2000, 546 (547). 21
Lundmark, JuS 2000, 546 (547), referring to European Communities Act 1972, Kap. 68, 2 (1).
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First, there does not exist any similarity between the current case and the
precedent case, e.g. because the precedent is about another area of law and the
judge denies an analogy.
Second, the judge satisfies himself that – even if he had decided the precedent case
and had decided similarly to the actual precedent decision – he is, according to
logic, not forced to make another decision as he likes to do now, e.g. because it
turns out that the facts of the cases are significantly different.
And in addition also a judgment having been decided per incuriam does not have
to be followed as precedent. Literally translated as ‘through want of care’, per
incuriam refers to a judgment of a court which has been decided without reference
to a statutory provision or earlier decision which would have been relevant and
binding. The significance of a judgment having been decided per incuriam is that
it does not then have to be followed as precedent. Even though such a judgment is
a rare exception, lower courts are free to depart from an earlier judgment of a
superior court where that earlier judgment was decided per incuriam.22
On the other hand the courts in civil law countries at least feel they are bound by
the decisions of the higher courts as well.23
And in addition, for instance in
Germany – except for the above mentioned fact that all courts of the countries of
the European Union are bound to the decisions of the European Court of Justice by
law –, there is a codified rule that all decisions of the highest German court, the
Federal Constitutional Court (Bundesverfassungsgericht), are binding. According
to paragraph 31 subsection I of the Federal Constitutional Court Code
(Bundesverfassungsgerichtsgesetz) all decisions of the Federal Constitutional
Court are binding for all German federal and provincial constitutional bodies and
for all courts and authorities. Although the German Federal Constitutional Court
itself limits the importance of this rule by stating that only the basic principles of
22
Lundmark, JuS 2000, 546 (547). 23
Brand, JuS 2003, 1082 (1089).
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its decisions are binding, the rule still goes beyond any common law country as
much as it is a codified rule about the binding effect of a high court decision for
lower courts.24
Thus it is not entirely correct to assume that common law judges are strictly bound
to the authority of higher courts while civil law judges are only bound to codes
and reason.
3. Method of legal thinking and finding of justice
The true difference between common law and civil law may be seen rather in their
different methods of legal thinking and their different approach in finding
justice.25
Common law is dominated by focusing on each single case, so called ‘reasoning
from case to case’. Generalizations or principles are only developed through
deciding single cases. In this respect the principle of precedents is truly typical for
common law. The central role in common law is played by the judge, who thinks
and decides historically, concretely, goes by facts and without any noticeable
dogmatic conceptual construct.26
In contrast civil law thinking means to develop abstract principles regardless of
single cases and to apply these abstract principles to the facts of the case by a
process of subsuming. Thus in civil law the abstract rule, whose applicability to
every single case has to be checked, takes the center stage. This method requires
anticipating and solving of problems prior to their appearance, while common
lawyers are rather in a position to wait and see and react to the problems when
24 Lundmark, JuS 2000, 546 (548). 25
Brand, JuS 2003, 1082 (1089); Handschug, ’Einführung in das kanadische Recht’, marginal number 34
(page 14). 26
Brand, JuS 2003, 1082 (1089).
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they appear.27
Therefore it does not surprise that in civil law the dogmatic, abstract
and norm-based thinking scholar dominates rather than the judge.28
So in civil law it is doctrine – including the codifiers’ reports about the legislative
process – that has priority over jurisprudence while in common law it is the
opposite way around.29
This phenomenon of different priorities may be explained by the different roles of
legislature in both systems.30
Particularly the Continental European civil law
countries took over Montesquieu’s theory of separation of powers, whereby it is
the function of the legislature to make laws and the courts’ function to apply these
laws. By contrast it is the judge-made law – made by precedents – that is the basis
and the core of law in common law.
The historic explanation for this development of the judges as central institution in
common law may be that the judges’ style of acting could be retained over
centuries more or less unchanged, because in England a powerful, guild-organized
and all in all equally educated lawyer-class could hold its ground due to England’s
easy geographic position as an island.31
On the politically and legally divided
European continent such a similar powerful class of judges and lawyers could not
arise so that scholars, united in following Roman law, could achieve priority in
legal thinking.32
Having presented the difference in the method of legal thinking and finding justice
as possibly most basic difference between common law and civil law, additional
differences between the two traditions should be pointed out, differences which
are particularly significant for legal practice.
27 Brand, JuS 2003, 1082 (1089). 28
Brand, JuS 2003, 1082 (1089). 29 Tetley, ’Mixed Jurisdictions, Part I’, V. 1. (page 15). 30
Tetley, ’Mixed Jurisdictions, Part I’, V. 1. (page 15). 31
Brand, JuS 2003, 1082 (1089). 32
Brand, JuS 2003, 1082 (1089).
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4. Function of doctrine
First of all it is a logical consequence that doctrine has different functions in the
two traditions.
While it is the function of doctrine in civil law to provide all practitioners,
including the courts, with a guideline for handling and deciding of specific future
cases by developing basic rules and principles from the numerous legal treatises
and to some extent also from cases, it is the rather modest function of doctrine in
common law to find differences and similarities in decided cases and to extract
specific rules from decided cases.33
5. Appointment / selection of judges
Because of the important role of judges in common law, namely to decide what is
the law, judges in the common law countries, particularly judges of the higher
courts, are typically selected and appointed only from among experienced
practicing lawyers.34
By contrast it may surprise common lawyers when telling them that it is quite
usual in civil law to appoint young highly skilled but inexperienced graduates to
judgeships. Although it is, for instance in Germany, well established practice to
give recently appointed judges the opportunity to gain practical experience by
serving at the beginning of their career in a chamber with two experienced judges,
it is also not unusual for recently appointed judges to decide cases in lower courts
as sole judges immediately after their appointment. In addition in Germany there
are rules which provide an age limit for appointing of judges. There may be some
exceptions for these rules, but in general the age limit is about 35 years, depending
33
Tetley, ’Mixed Jurisdictions, Part I’, V. 2. (page 15). 34
Tetley, ’Mixed Jurisdictions, Part I’, V. 10. (page 17).
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on the laws of the federal states, which have to be applied. It is almost never the
case that someone as young as 35 is appointed a judge in common-law countries.
6. Procedural differences – adversarial vs. inquisitorial/proceedings’ purposes
In what follows, more differences will be described, particularly respecting the
conduct of cases.
Court proceedings in common law may be described – at least in private law – as
strictly adversarial.
In this system the attorneys are responsible for presenting the facts of the case, the
positions of each party and the legal views including all relevant precedents. In an
ideal common law procedure the judge has the function only to manage the
proceeding, to review all facts of the case and legal views presented to him and
finally to decide the case on that basis, or when the case is tried by a judge and
jury, to sum up the evidence and the legal principles for the assistance of the jury.
Thus, as the proceeding depends mainly, at least in theory, on the behavior and the
skills of the attorneys it is not surprising that in the English legal system different
categories of attorneys exist to this day, namely ‘barristers’ and ‘solicitors’.
The term ‘barrister’ means simply a lawyer whose only function is litigation –
representation of clients before a court or furnishing of opinions about chances of
success of a planned lawsuit.35
In contrary to that the less specialized ‘solicitor’ is the clients’ first contact point.
His functions are – apart from litigation, for which he hires a barrister – a variety
of legal actions, for instance transfer of title, marriage law or drafting of wills.36
This distinction between barrister and solicitor emphasizes the importance of
attorneys in litigation in the adversarial system.
35
Handschug, ’Einführung in das kanadische Recht’, marginal number 291 (page 98). 36
Handschug, ’Einführung in das kanadische Recht’, marginal number 291 (page 98).
14
However, this distinction between barrister and solicitor does not exist in all
common law countries or is, like in Canada, nowadays merely a historical matter
without practical consequence. Although in Canada there is still a distinction
between barrister and solicitor, each member of a bar association of one of the
Canadian provinces is allowed to practice both as barrister and as solicitor without
any limitations.37
In practice, however, the distinction between a lawyer who
engages primarily in court appearances and giving opinions and transaction
lawyers is normal in large commercial centres, if not in small communities.
Indeed the civil proceedings in civil law are depending on the parties’
(respectively their attorneys’) preferences, too, but judges have a much more
active part to play than judges in common law. That is why civil law proceedings
– apart from public and criminal proceedings – may be described as inquisitorial
in contrast with common law proceedings. Thus civil law judges have many
functions which in common law the attorneys are responsible for.
For instance in civil law the judge is generally responsible for the oral questioning
of the witnesses in taking evidence. Thereby the judge asks the witnesses about the
factual issues of the case, which are alleged and presented by the attorneys in their
pleadings and which were offered for the evidence. The attorneys then normally
have only the opportunity to raise additional questions.38
In common law the parties respectively their attorneys are obliged to bring in all
relevant evidence. This includes taking of evidence by questioning the ‘parties
own’ witnesses and also questioning the witnesses brought forward by the
opponent.39
37
Handschug, ’Einführung in das kanadische Recht’, marginal number 29 (page 99). 38
Wirth, SchiedsVZ 2003, 9 (14). 39
Wirth, SchiedsVZ 2003, 9 (14).
15
A method of questioning witnesses by attorneys as described is unknown to civil
law and is called ‘cross-examination’. Thereby both parties call ‘their’ witnesses
and expert witnesses. The party which calls a witness has the right to question this
witness first. Because the answers of this ‘own’ witness will in most cases be
favorable for the party that brought it forward, afterwards the opponent has the
right to question the ‘other party’s’ witness.40
It is particularly respecting this
matter of cross-examination by attorneys that the civil law proceedings, where, as
explained, generally only the judge questions the witnesses and expert witnesses,
differ significantly from common law proceedings.
Having said that, another significant difference between adversarial and
inquisitorial system is the manner in which they deal with experts. While in
common law, as explained above, each party can bring forward and question its
‘own’ expert and the judge only has to decide which expert is more convincing, in
civil law it is the judge who in most cases appoints the expert, often a sole witness,
and then accepts his opinion.41
The different approach of the two traditions is also manifested in the matter of
recognition of foreign law.
In common law only the parties are responsible for pleading the applicability of
foreign law. Thereby foreign law in common law proceedings is not seen as law,
but as an issue of fact, which needs to be proven. The party which pleads foreign
law then consequently has to carry the burden of proof. If that party does not bring
forward any evidence or if the evidence fails, only domestic law is applied by the
court on the theory that if foreign law is not proved to be different from domestic
law, then it is presumed to be the same.42
40
Linhart, ’Englische Rechtssprache’, page 52. 41
Von der Recke, SchiedsVZ 2007, 44 (44). 42
Schiemann, EuR 2003, 17 (18).
16
In contrast, for the civil law judge it is generally compulsory to find and apply
foreign law according to the principle ‘iura novit curia’ (the judge knows the
law).43
Another basic difference between common law and civil law is the purpose of the
proceeding.
To express it with perhaps exaggerated simplicity, procedural rules in common
law put the parties in a position where they are able to find out the facts of the case
so that they can present these facts to the judge, respectively in some cases to a
jury, and make it possible for the judge or the jury to make the right decision.44
Needless to say, the ‘right decision’ depends on each party’s own view.
Procedural rules in civil law focus rather on settlement of the dispute. This also
explains the parties’ limited role in presenting evidence. In civil law it is all about
finding out the most likely version of the facts of the case. So it is more or less
accepted that sometimes decisions may be not ‘right’, that is, are not based on the
absolute truth.45
In civil law it is usual that in a first procedural step the parties present the case
extensively in writing, that means the parties substantiate all the relevant facts of
the case, bring forward the needed evidence for their allegations (offer evidence)
and give reasons for their pleadings. Then, after some correspondence mainly
between the two parties but with involvement of the court, a trial takes place
before the court, in which the judges check all the evidence offered by the parties
and conclude by giving a decision.
43
Schiemann, EuR 2003, 17 (17); Tetley, ’Mixed Jurisdictions, Part II’, VII. 5. (pages 4 and 5). 44
Wirth, SchiedsVZ 2003, 9 (10). 45
Wirth, SchiedsVZ 2003, 9 (10).
17
For common law proceedings it is typical that first of all the parties collect all the
evidence in an in many cases very extensive pre-trial-discovery which includes
gaining access to the opponent’s files.46
Not until then the case is presented before
the court in an orally held trial in which the parties present all the procedural
matter to the judge.47
The pre-trial, which is followed by the actual trial, starts by submitting a relatively
short statement, called a pre-trial memorandum, of what can be proved at trial. The
purpose of the pre-trial is to bring together all available evidence that could
support the claim, and is mainly carried out by the parties’ attorneys.48
The
purpose of the pre-trial hearing is to ensure that the parties are ready for trial, to
advise the parties what result might be expected from the evidence referred in the
pre-trial memorandum and, sometimes, to mediate a settlement.
The question of how to deal with the delivery of documents is a major difference
between the two systems. While in civil law each party generally has to prove its
claim with its ‘own’ documents, that means with documents in its possession, and
while it is a rare exception, if a judge follows a party’s demand and orders that the
opponent has to deliver documents, the parties in common law have the right
during the pre-trial-discovery, so even before they have to give full reasons for
their claim, to get broad access to all relevant documents which are in possession
of the opponent.49
Firstly the delivery can be requested directly, without involving
the court, from the opponent. The requested documents do not have to be specified
in detail, a broad categorization is sufficient. The delivery of all documents, which
46 Wirth, SchiedsVZ 2003, 9 (10). 47
Wirth, SchiedsVZ 2003, 9 (10). 48
Böhmer, NJW 1990, 3049 (3052). 49
Wirth, SchiedsVZ 2003, 9 (11).
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are relevant to the case or, according to US-law about taking the evidence, which
even may lead to the discovery of new evidence – is obligatory.50
The common law approach of delivery of documents may allow claims, for which
the plaintiff actually does not have sufficient evidence for a claim and rather
attempts to establish his initial allegations (in his statement of claim) only through
evidence provided by the defendant. Thus this approach can result in a form of
self-incrimination of the defendant.51
It can also lead to what common law lawyers
call ‘fishing expeditions’, in which a party hopes by gaining access to the
opponent’s documents, to establish a claim.
IV. Reciprocal influences
Now that some of the differences between the two legal systems, common law and
civil law, have been illustrated, admittedly in an unavoidably selective manner, the
reciprocal influences which the two systems have exerted on each other will be
discussed.
1. Legal system of Scotland
As previously mentioned, the legal system of Scotland can be described as hybrid.
Currently, this system cannot be definitely attributed to civil or common law. This
is due to the fact that, during the course of centuries, the Scottish legal system was
exposed to various influences. These influences will be outlined briefly.52
50
Wirth, SchiedsVZ 2003, 9 (12). 51
Demeyere, SchiedsVZ 2003, 247 (250). 52
To all this see: Tetley, ’Mixed Jurisdictions, Part I’, IV. 4. (pages 7-9).
19
Firstly, feudalism brought to Scotland from England and also the Roman Catholic
Church (Canon) law, among others, can be considered the most important
influences on the law of Scotland.
Subsequent to the decease of King Robert the Bruce in 1329, the so-called Dark
Age began for the law of Scotland which resulted from political conflicts,
economical difficulties and weak government. During that time, Scotland adopted
a multitude of French institutions, and many Scottish legal professionals were
trained in France. During this period, the Scottish legal system developed its
nature as civil law system comparable to continental European legal systems.
After the foundation of the Scottish Parliament and, in 1532, of the Court of
Session as Supreme Court of Scotland, the phase of reception of Roman law,
which lasted until the conclusion of the Napoleonic wars, took place in Scotland.
During this phase, a multitude of Scottish legal professionals studied at the most
recommended European universities from distinguished continental-European
jurists. Consequently, various civilian rules and principles were integrated into the
Scottish legal system.
Beginning with the union of the Scottish and English parliament in the year 1707
which meant the abolition of the Scottish parliament, as well as with the
establishment of the House of Lords, as the ultimate court of appeal for Scottish,
as well as English, civil proceedings, the English common law gained influence on
the Scottish law system, which up to this point was primarily characterized by
civil law. The English common law displaced the Roman law as the hitherto most
important external influence; the doctrine of precedents characteristic for common
law was accepted and Scottish legal professionals did not any longer focus on
continental-European cases or legal scholars, but instead on those of England.
Beyond that, this still enduring process is enhanced by the fact that it is easier for
20
Scottish legal professionals, due to the language, to follow the English legal
development than the Continental-European.
Hence, a remarkable influence of common law on civil can also be observed in
Scotland.
The influence concerning English and Scottish law, however, is not solely
unilateral. As demonstrated before, the House of Lords became the highest
authority for Scottish civil proceedings.
Certainly, this means a big influence of common law on Scottish law initially
being civilian. This influence, however, must not be overestimated since also a
Scottish presence exists within the House of Lords. Many Scottish judges have
been appointed to the House of Lords and have influenced English law by
reasoning from European civil law when deciding cases. This circumstance has the
result that also the influence of Scottish Law, and through it, civil law, can be
observed in the House of Lords.53
2. The European unification
Another, probably more important sector where civil law influences common law,
is the European unification in which England (UK) has participated since 1973.
Thereby, England (UK), just like any other member of the European Union, is
obligated to implement guidelines of the EU, whose style may be characterized
rather as civilian.54
Consequently, English courts are also obligated to respect and
to implement the jurisdiction of the European Court of Justice.
53
Tetley, ’Mixed Jurisdictions, Part II’, XIV. 3. (page 17). 54
Brand, JuS 2003, 1082 (1090).
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In this context, one can say that the European Community Law und thereby the
European Court of Justice as Supreme Court can be rather attributed to civil law
than to common law, due to the prevalence of continental-European countries
within the European Union.
The same can be said for the European Convention on Human Rights and the
jurisdiction of the European Court for Human Rights. By having ratified and
incorporated the Convention, England (UK) has opened another avenue for civil
law to influence English law.55
The consequence of all of this is that through the process of the European
unification and the consequent need of English legal professionals to deal with
European law, their interest in the continental-European legal system characterized
by civil law, and especially in legal systems of France and Germany, has been
awakened.56
3. Capital market and international law firms
The capital market and also large international law firms are themselves
significant forces by which common law brings influences on civil law.57
This comes about because to an important extent, those drafting contracts in the
course of international business are large Anglo-American law firms. Those
contracts differ from civil law contracts insofar as the common-law commercial
contracts are more extensive compared to the latter. This is reasoned by the fact
that contracts in civil law do not require provisions that are already applicable
according to codified law. Merely deviations from and exceptions of the codified
55
Schiemann, EuR 2003, 17 (20/21). 56
Schiemann, EuR 2003, 17 (34/35). 57
Brand, JuS 2003, 1082 (1090).
22
law – of course alongside to the essentialia negotii that are in any case to be
stipulated – need to be regulated by contract.
Unlike civil law, it is the practice in common law drafting, due to its
particularities, to make very detailed provisions. Because of the apparent
prevalence of Anglo-American big law firms, contracts drafted by common
lawyers are adopted as standard within European business law. The detailed nature
of these commercial contracts arises to a certain extent from the fact that such
contracts in effect state the legal relationship between the parties where governing
legal systems do not provide for the necessary detail and in this respect they go
beyond the law established by any country’s legal system. It follows from this
that when cross-border transactions are involved, these complex, detailed contracts
are the basis for the dealings of the parties, even when one or more of the parties is
based in a civil law country. This leads to the adoption of Anglo-American
(economic legal) system models on parts of continental-European civil law.
4. Maritime law
Another example of the influence of common law on areas of the civil law is the
Maritime law. Maritime law is a hybrid legal system on its own existing in all
legal systems, initially arising from civil law. In the latter, at least 200 years,
however, Maritime law, and in particular, marine insurance, has been influenced
significantly by common law principles and alterations and benefited from it.58
58
Tetley, ’Mixed Jurisdictions, Part I’, III. 8. (page 5).
23
5. Legal system of Louisiana
Besides Scotland, there is another country traditionally characterized by civil law
that is now even more than Scotland influenced and dominated by common law,
namely the US federal state Louisiana.59
After Louisiana became a French colony in the year 1731, French law, based on
the Civil Code, was in force. After some years following the cession of Louisiana
to Spain in the year 1763, Spanish law, also based on civil law, was introduced.
Directly after re-cession to France, the USA took possession of Louisiana in the
year 1803. The fact that, opposed by the efforts of many Americans, the civil law
tradition has been continued is shown by the Louisiana Civil Code from 1825
which was strongly oriented towards the French Code Civil and which was also
published in, at that time, official national languages French and English. A new
civil code was declared in the year 1870. This code was now composed only in
English but did not fundamentally alter the former Civil Code other than the
incorporation of some new provisions including the abolition of slavery.
Today, French has disappeared completely from the courts, the law, and, as well,
from legal literature. Most of the legal professionals in Louisiana are not able to
speak French and consequently can scarcely be expected to resort to the initial
French legal tradition of their country. Combined with the gaining superimposition
of US federal law, common law increasingly displaces the civil law tradition. This
is also illustrated by the fact that although in Louisiana itself judges are required to
prove knowledge of both, common law as well as of civil law, this requirement is
not insisted on. As a result, should a case from Louisiana required to be decided
according to civil law end up before the US Supreme Court, it will be decided only
59
To all this see: Tetley, ’Mixed Jurisdictions, Part I’, IV. 7. (pages 12/13); ’Part II’, XIV. 1. (c), (page 13).
24
by common law judges, unlike Scottish cases in the House of Lords, where the
presence of a judge trained in Scottish law is guaranteed.60
V. Points of intersection
1. International arbitration
One of the significant areas where common law and civil law currently converge
is international commercial arbitration.
The reasons for parties to agree that a dispute upon a contract shall be settled by a
privately appointed arbitrator instead of state court are mainly the following:
In the event a dispute is subject to a state jurisdiction, it is very likely that the
dispute will not be settled by one judgment but will involve several jurisdictions.
Besides high costs, this also means a significant expenditure of time for the parties
which can be a remarkable disadvantage in the modern course of business.
Especially in common law, the discovery proceedings previously referred to can
escalate into cost-intensive as well as time-consuming proceedings.
An additional advantage of arbitration is that, unlike court proceedings, the matter
of the dispute is confidently in the sense that it is not accessible to the public.
In addition it is up to the parties to agree on rules for the arbitration. This means,
inter alia, they can agree in advance, on which amount documents shall be
disclosed and also, of course the place of arbitration, the arbitrator, the language of
the case and in particular the rules of procedure need to be agreed upon.
Particularly at this point there is a direct clash between common and civil law
60
Tetley, ’Mixed Jurisdictions, Part II’, XIV. 3. (pages 16/17).
25
within the field of international arbitration, if one party belongs to a different
system than the other.
It is obvious that each party tends to choose the legal system and the rules of
procedure it is familiar with.61
Since, in general, a compromise between both legal
systems needs to be found, debates between different legal systems are inevitable
and may result in a party questioning the merits of its own system.62
In this sense, international arbitration presents an important interface between
common and civil law.
The linking of common and civil law, however, goes beyond what has been
described above. There is a multitude of international agreements providing rules
with relation to international arbitration. In this context the most significant and
notable are the so-called “New York Convention” (Convention on the Recognition
and Enforcement of Foreign Arbitral Awards) from 1958, initiated by the United
Nations, in effect since June 1959, as well as the UNCITRAL (United Nations
Commission in International Trade Law, founded by the General Assembly of the
UN in 1996 to promote the progressive harmonization and unification of the law
of international trade) Arbitration Rules from 1976 and the UNCITRAL Model
Law on International Commercial Arbitration from 1985.63
Insofar as the actual procedure of an international arbitration is concerned, the
Rules on the Taking of Evidence in International Commercial Arbitration (IBA
Rules of Evidence) which were set by the International Bar Association (IBA) in
1999 should be mentioned. These rules present a successful attempt to combine
the best parts of common and civil law and to harmonize them, to a certain degree,
61 Wirth, SchiedsVZ 2003, 9 (10). 62
Demeyere, SchiedsVZ 2003, 247 (248/249). 63
Guilherme da Silva Jr., ’Arbitration and the International Trade Field’, 2006, pages 11-13;
Short/Fullerton, ’Commercial Litigation: Out of the Courts’, Commercial Litigation 2008, page 12.
26
in regard to rules of evidence.64
Further should be acknowledged that practitioners
consider the IBA Rules of Evidence a successful compromise of both law systems
and apply them increasingly in the field of international arbitration.65
How far the IBA Rules of Evidence are accepted is proved by the fact that these
rules – initially considered as compromise for proceedings between common law
parties on the one hand and civil law parties on the other hand – are applied more
and more in arbitration proceedings in which all the participants belong only to
civil law systems.66
One possible reason for this phenomenon may be that
common law procedures and the role of the judge in common law correspond
more with the purpose of arbitration and the role of the arbitrator than do the
nature of civil proceedings and the role of judges in civil law.
In arbitration proceedings, the purpose of the proceeding is more a question of
‘finding the truth’ than ‘settlement of the dispute’. It is important to remember that
international arbitration agreements frequently provide for prior compulsory
mediation. If the parties are unable to compose their differences with the
assistance of a neutral mediator, then the purpose of arbitration is not to try to
bring them together but to decide who should prevail and to what extent.
The parties to arbitration will more likely accept the arbitrator as an impartial
person to decide who should prevail if the arbitrator does not interfere actively in
the proceedings and behaves in a somewhat reserved manner, as common law
judges typically do.67
Finally, the purpose of ‘finding the truth’ as opposed to
‘settlement of the dispute’ is also important, because the arbitrator’s decision
cannot be corrected as easily as in court proceedings, where often an appeal is
possible and the decision at first instance can be controlled by a higher court.68
64
Demeyere, SchiedsVZ 2003, 247 (248). 65 Demeyere, SchiedsVZ 2003, 247 (249). 66
Wirth, SchiedsVZ 2003, 9 (13). 67
Wirth, SchiedsVZ 2003, 9 (14). 68
Wirth, SchiedsVZ 2003, 9 (11).
27
Of course a civil law arbitrator will apply common law principles only if this is
more effective to him and he will follow civil law rules for the rest.
Thus the area of international commercial arbitration is not merely a place of clash
and confrontation between common law and civil law but actually also a real point
of intersection where common law and civil law are fused together to a certain
degree.
2. UNIDROIT Principles of International Commercial Contracts
Besides international commercial arbitration another important point of
intersection between common law and civil law are the UNIDROIT (International
Institute for the Unification of Private Law) Principles of International
Commercial Contracts and theirs comments. The first version of this compilation
was finished in 1994 after several years of labor by a working group comprising
some of the most respected specialists in contract law and international trade law
from the different legal traditions of common law, civil law and the Socialist legal
system.69
The drafters took account of both common law and civilian principles
and codifications.70
In 2004 a second extended version of UNIDROIT Principles
of International Commercial Contracts was published. The purpose of the
compilation is clearly set forth at the outset of the text, which is the same in both
versions except of few amendments:
‘These Principles set forth general rules for international commercial contracts.
They shall be applied when the parties have agreed that their contract be governed
by them.
69
Tetley, ’Mixed Jurisdictions, Part II’, VIII. 2. (page 7). 70
Tetley, ’Mixed Jurisdictions, Part II’, VIII. 2. (page 7).
28
They may be applied when the parties have agreed that their contract be governed
by general principles of law, the lex mercatoria or the like.
They may be applied when the parties have not chosen any law to govern their
contract.
They may be used to interpret or supplement international uniform law
instruments.
They may be used to interpret or supplement domestic law.
They may serve as a model for national and international legislators.’71
As explained in the outset, the UNIDROIT Principles of International Commercial
Contracts may be seen as a modern lex mercatoria, or at least as a part of it, and
are in fact increasingly accepted by practitioners as a guideline and applied as a
substantive restatement of supranational commercial norms.72
Insofar these rules,
developed by specialists of different legal traditions and systems, are a particular
point of intersection between common law and civil law.
3. Legal system of Quebec
Finally, as last example of a point of intersection between common law and civil
law the legal system in Quebec may be mentioned.
Due to its history as a former French colony, private law in Quebec is to be
qualified as civilian. However, in other areas of law, like constitutional law or
criminal law, Quebec has, like the rest of Canada in all areas of law, a typical
common law legal system.73
This brings about a clash of legal traditions to a
certain degree, but, as mentioned at the beginning of this paper, constitutional law
and criminal law lie outside the scope of this article.
71
http://www.unidroit.org/english/principles/contracts/principles2004/blackletter2004.pdf 72
Tetley, ’Mixed Jurisdictions, Part II’, XV. (page 17). 73
Handschug, ’Einführung in das kanadische Recht’, marginal number 202 (page 72).
29
The Code Civil du Bas-Canada came into force on August 1st 1866 and reflected
to a great extend the French Code Civil of 1804 respecting its structure and style.74
Then in 1991 the whole of the present Code Civil du Quebec was enacted and
came into force on January 1st 1994.
75 This law is a new, modernized civil code
that took the influence of several English principles and institutions into account,
while still respecting the basic structure and terminology of civilian codification.76
Remarkable in this context is the probably unique initiative of Canada to reconcile
common law, which is valid in all other Canadian provinces and territories except
from Quebec and which dominates also Canadian federal law more and more, with
Quebec’s civil law by statute. So in 1998 the Canadian federal Minister of Justice
introduced Bill C-50, entitled ‘Federal Law – Civil Law Harmonization Act, No.
1’ in the Canadian parliament. It is the major purpose of the Bill, according to the
News Release re. Bill C-50, released June 12th
1998, to ‘… ensure that all existing
federal legislation that deals with private law integrates the terminology, concepts
and institutions of Quebec civil law’.77
Therefore in 2001 two new rules of interpretation were amended to the Canadian
Interpretation Act because of Bill C-50. These new sections 8.1 and 8.2 of the
Canadian Interpretation Act read as follows:78
‘8.1 Both the common law and the civil law are equally authoritative and
recognized sources of the law of property and civil rights in Canada and, unless
otherwise provided by law, if in interpreting an enactment it is necessary to refer
to a province's rules, principles or concepts forming part of the law of property and
civil rights, reference must be made to the rules, principles and concepts in force
in the province at the time the enactment is being applied.’
74
Tetley, ’Mixed Jurisdictions, Part I’, IV. 6. (page 11). 75 Handschug, ’Einführung in das kanadische Recht’, marginal number 195 (page 70). 76
Tetley, ’Mixed Jurisdictions, Part I’, IV. 6. (page 12). 77
Tetley, ’Mixed Jurisdictions, Part II’, IX. (pages 8/9). 78
http://canada.justice.gc.ca/eng/pi/bj/harm/Index.html
30
‘8.2 Unless otherwise provided by law, when an enactment contains both civil law
and common law terminology, or terminology that has a different meaning in the
civil law and the common law, the civil law terminology or meaning is to be
adopted in the Province of Quebec and the common law terminology or meaning
is to be adopted in the other provinces.’
This Canadian initiative in the harmonization of the common law and the civil
law, in a manner designed to respect the essence and genius of each system, is a
particular point of intersection between both of the big legal traditions and might
well be of interest to other mixed jurisdictions around the world, not at least to the
European Union.
VI. Conclusions
This paper has introduced and compared the two important legal traditions of
common law and civil law in an overview manner.
As one of the most significant differences the essential different methods of legal
thinking were pointed out:
While common law focuses on each single case (reasoning from case to case), it is
rather the civil law approach to find justice by abstract, beforehand defined
principles.
Furthermore various – process-related – differences between both systems were
mentioned and explained. Most of the differences are based on the fact that civil
proceedings in common law are rather adversarial and that those in civil law are
rather inquisitorial.
31
Also it was pointed out that both legal traditions influence each other, for instance
in the Scottish legal system or in connection with the European unification.
Finally, international commercial arbitration, the UNIDROIT Principles of
International Commercial Contracts and also Canada’s exemplary initiative in
harmonizing common law and civil law were identified as remarkable points of
intersection between both legal traditions.
Dominik Lengeling
Law firms
PATRICK SCHINDLER, Toronto /
SCHLEIFENBAUM & ADLER, Siegen
32
Bibliography
Böhmer, Christof ‘Spannungen im deutsch-amerikanischen
Rechtsverkehr in Zivilsachen’
Neue Juristische Wochenschrift (NJW) 1990,
p. 3049-3054
Brand, Oliver ‘Grundfragen der Rechtsvergleichung’
Juristische Schulung (JuS) 2003, p. 1082-1091
Demeyere, Luc ‘The Search for the “Truth”: Rendering Evidence
under Common Law and Civil Law’
Neue Zeitschrift für Schiedsverfahren (SchiedsVZ)
2003, p. 247-253
Guilherme da Silva Jr., ‘Arbitration and the International Trade field’, 2006
Luiz Fernando (Dr. Thomas Marx Award 2006)
Handschug, Stephan ‘Einführung in das kanadische Recht’,
Munich, 2003
Linhart, Karin ‘Englische Rechtssprache – Ein Studien- und
Arbeitsbuch’, Munich, 2008
Lundmark, Thomas ‘Umgang mit dem Präjudizienrecht’
Juristische Schulung (JuS) 2000, p. 546-549
33
Graf von der Recke, Kai ‘The Common Law/Civil Law Divide in International
Commercial Arbitration and its Practical
Consequences for Transatlantic Practitioners’
Neue Zeitschrift für Schiedsverfahren (SchiedsVZ)
2007, p. 44-46
Schiemann, Konrad ‘Aktuelle Einflüsse des deutschen Rechts auf die
richterliche Fortbildung des englischen Rechts’
Europarecht (EuR) 2003, p. 17-35
Short, Donald E. / ‘Commercial litigation: Out of the courts – Common
Fullerton, Amanda mistakes to be avoided when drafting arbitration
agreements’
Tetley, William ‘Mixed Jurisdictions: common law vs. civil law
(codified and uncodified)’
- Part I:
http://www.unidroit.org/english/publications/review/
articles/1999-3.htm
- Part II:
http://www.unidroit.org/english/publications/review/
articles/1999-4a.htm
Wirth, Markus ‘Ihr Zeuge, Herr Rechtsanwalt! – Weshalb Civil-Law-
Schiedsrichter Common Law-Verfahrensrecht
anwenden’
Neue Zeitschrift für Schiedsverfahren (SchiedsVZ)
2003, p. 9-15