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1.

Introduction

Civil law

Civil law may be defined as that legal tradition which has its origin in Roman
law, as codified in the Corpus Juris Civilisof Justinian, and as subsequently
developed mainly in Continental Europe. The civil law legal tradition itself can be
dividedfurther into the Romanic laws, influenced by French law, and the Germanic
family of laws, dominated by German jurisprudence. In particular the Roman laws
were modeled on the groundbreaking French Code Civil from 1804 (Code
Napoleon), which conquered Europes realm of ideas as the Napoleonic armies
conquered the countries. 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.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.

Common law

Common law is the legal tradition, which evolved inEngland 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. 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.
2.Differences between common law and civil law

2.1. 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.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. 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.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 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.
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.

2.2. 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
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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.

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 is
not right.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. 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.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. 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.Only British judges are nowadays
bound to decisions of the European Court of Justice by law. 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: 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

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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. 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.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 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.

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.

2.3. 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.
Common law is dominated by focusing on each single case, so called reasoning
from case to case. Generalizations or principles are only developed through

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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.

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 they
appear.Therefore it does not surprise that in civil law the dogmatic, abstract and
norm-based thinking scholar dominates rather than the judge.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.

This phenomenon of different priorities may be explained by the different roles


of legislature in both systems.Particularly the Continental European civil law
countries took over Montesquieus 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 Englands easy geographic position as an island.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.

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.

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2.4. 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.

2.5. 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. 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 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.

2.6. Procedural differences adversarial vs.


inquisitorial/proceedings purposes

Court proceedings in common law may be described at least in private


law asstrictly adversarial.I n this system the attorneys are responsible for
presenting the facts of the case, the positions of each party and the legal views

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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.

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.This distinction between barrister and solicitor emphasizes the importance of
attorneys in litigation in the adversarial system. 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.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

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offered for the evidence. The attorneys then normally have only the opportunity to
raise additional questions.

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.
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 partys witness.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.

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. 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).

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

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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.Needless to say, the right decision depends on each partys 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. 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 theevidence offered by the parties and
conclude by giving a decision.

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 opponents files.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. 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.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 partys 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.Firstly the delivery can be
requested directly, without involving the court, from the opponent.The requested

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documents do not have to be specified in detail, a broad categorization is sufficient.
The delivery of all documents, which are relevant to the case or, according to US-law
about taking the evidence, which even may lead to the discovery of new evidence
isobligatory.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.It can also lead to what common law lawyers call
fishing expeditions, in which a party hopes by gaining access to the opponents
documents, to establish a claim.

3. 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.

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References:

The Common Law by Oliver Wendell Holmes, Jr.


The Roman Law Library by Professor Yves Lassard and Alexandr Koptev
The Civil Law System by A Von Mehren and J Gordley

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