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Volume 1, Issue 1 2006 Article 11
Comparative Legal Traditions - Introducing the Common Law to Civil Lawyers in Asia
Margaret Fordham, Associate Professor, Faculty of Law, National University of Singapore; Deputy Director, Asian Law Institute
Recommended Citation: Fordham, Margaret (2006) "Comparative Legal Traditions - Introducing the Common Law to Civil Lawyers in Asia," Asian Journal of Comparative Law: Vol. 1: Iss. 1, Article 11. DOI: 10.2202/1932-0205.1013 Available at: http://www.bepress.com/asjcl/vol1/iss1/art11 ©2006 Berkeley Electronic Press. All rights reserved.
and examines the characteristics which the two systems share – characteristics which ultimately suggest that the innate differences have more to do with process than with philosophy. reconcile.Introducing the Common Law to Civil Lawyers in Asia Margaret Fordham Abstract As our focus turns from purely domestic law to regional and global issues. . It also. however. considers the underlying similarities between common law and civil law systems. Author Notes: The writer would like to thank an anonymous referee for his very helpful comments on an earlier draft. This article focuses on the particular challenges involved in introducing the common law to Asian lawyers from civilian jurisdictions. It considers the difficulties which lawyers who are accustomed to a codified system of law experience when faced with the notionally more fluid and less structured system adopted in common law countries. the world’s two major systems of law – the common law and civil law systems. Both play a crucial role in the legal infrastructure of Asia. there is an increasing need to explain and. and their sometimes uneasy relationship is one of the many challenges to overcome if we are to establish connections and forge understanding between the various legal traditions in this continent.Comparative Legal Traditions . where possible.
introduced in Asia largely through colonization. whereas the common law can be traced back less than 1. common law systems are based on judgemade law. the fact that the E. on the other hand. “Introduction to Civil Law Systems” in Danner and Bernal. and in particular the absence of jury trials. developed as a very practical system developed by custom. Zaphiriou. Malaysia and Singapore. THE HISTORICAL ROLE OF CIVIL LAW AND COMMON LAW IN ASIA The two predominant legal traditions in the world – the civilian and common 1 law systems – are to be found operating side by side in Asia. based on the German Civil Code.U. 2006 1 . It has its origins in Roman law and dates back about 2. particularly 1 2 3 The civil law is a much older legal tradition than the common law. and to be able to function within. Civil law was spread through colonizers such as the French and the Dutch to territories like Indochina and Indonesia. For analysis of the primary distinctions between the common law and civil law systems. Civil law spread through Europe via the universities. extensive and integrated codifications. particularly in criminal matters.Fordham: Comparative Legal Traditions I. eds Introduction to Foreign Legal Systems (Oceana Publications. 2 either purely or predominantly. Common law was introduced in countries colonized by the British. And while a formal legal grouping similar to the European Union may remain a distant dream in Asia. through which travelling courts (or assizes) within England could apply law which was ‘common’ to the whole country. Many of these systems are. in conjunction with the jury system. Most Asian countries introduced civil law systems in the latter part of the 19th century. In addition. while civilian judges are specially trained for their roles) to the role of academic writing (which is very influential in civil law courts but of far less significance in common law ones). which is developed on a case by case basis. There is also the very important fact that civilian jurisdictions adopt an inquisitorial approach to deciding cases. Even though. several major jurisdictions (notably China. in contrast to the adversarial approach of common law countries – which often operates. 1994) ch 3. see George A. and it applies today in territories such as India. even without the civilian tradition being imposed through colonization. and was therefore originally an academic system of law. South Korea and Thailand) chose to adopt systems which were based. on civil law. But probably the most fundamental difference between the two systems lies in the fact that while civil law jurisdictions have comprehensive written codes which are designed to cover every area of law. the lack of stare decisis. the other. Published by Berkeley Electronic Press. There are a number of important 3 differences between the two systems – ranging from the way in which judges are appointed (common law judges are drawn from within the legal profession. for historical reasons. In an age when cooperation and mutual understanding are core aims.000 years. there is a strong impetus for lawyers from each system to be familiar with. Japan. of course. and the nature of the trial procedure. has been able to bring together a large number of civil and common law traditions under a single legislature shows that the two systems are by no means as incompatible as they might at first appear. during a period when Germany was in its ascendancy.500 years. The two systems were. Zaphiriou argues that the four key characteristics of civil law systems are: a more dogmatic and moralistic approach to legal principles. Common law.
The legislation of common law countries can thus initially strike the civilian as 4 5 6 See discussion infra at C. The complexity of many (particularly newer) common law statutes invites reference to other materials in order to gain a more complete understanding. something which can seem bafflingly self-defeating. is – the backbone of the system. Traditionally. although they normally cover these areas in depth. 1. but in a different sense. the English courts. See. however. both in Asia and elsewhere.com/asjcl/vol1/iss1/art11 DOI: 10. since they do not normally offer a global snapshot or overview of a particular area of the law. 1. A. with legislation enacted 5 only in certain areas. ss. Interpretation Act (Cap. Sing). moving from first principles to specifics within a clear framework. although even that decision limits the circumstances in which parliamentary materials may be used. 4 II. http://www. but instead tend to provide comprehensive rules with respect to specific matters within that area. it is the weight given to judge-made law which really separates the common law world from its civilian counterpart.unidroit. there the similarities superficially end. eg. a much more liberal attitude to the use of extrinsic aids has been adopted. are used to codes which offer a sequential view of the law in a given area. took an extremely restrictive approach to the use of extrinsic aids when interpreting statutory provisions: see. Vol. For while in civilian systems jurisprudence plays a secondary role to codes (which govern the law primarily in the area of private law) and statutes (which predominate in public law matters). 9A(2) and (3). Iss. THE CHALLENGES IN INTRODUCING A CIVILIAN TO THE COMMON LAW The main challenges facing a civil lawyer who wishes to understand and function within a common law system thus relate to the role and structure of legislation and the overwhelming significance of case law. legislation plays an increasingly important role. LEGISLATION Legislation is the paramount source of law in both civilian and common law jurisdictions. However. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG  AC 591. eg.1013 2 . most statutes in common law systems address only selective areas of the law. in common law jurisdictions case law was historically – and still. They are thus also exhaustive. 11 in technical areas. Civilians. Codes are written at a high level of abstraction. 1 . and are based on principles derived from the scientific study of legal data. But here the civil lawyer has to be introduced to the historical reluctance – at least within the English common law tradition – to 6 make use of extrinsic aids. See William Tetley “Mixed jurisdictions: Common Law vs Civil Law (Codified and Uncodified)” <http://www. at least in theory. Art.org/english/publications/review>. On the other hand.Asian Journal of Comparative Law. thus offering an exhaustive overview of the law.bepress. In other jurisdictions. in particular.2202/1932-0205. The position in English law was relaxed in Pepper v Hart  3 WLR 1032. 1999 Rev Ed.
given that the development of the common law is dependent on particular fact patterns coming before the courts. The system does. Civilians often find the idea of the law being framed only when disputes arise to be odd and even somewhat crude and unsophisticated. it seems likely that the line dividing the two systems will. The difficulties experienced by civilians in understanding legislation in common law jurisdictions should not. he finds it easier to relate to criticisms of common law systems than to extol their virtues. 224. The system has been described by C. and a civilian may well discover that. civil law systems make extensive use of statutes as well as codes. C. however. 61). and the differences between the two systems are often in practice more apparent than real.W. particularly in the public law arena. incompatible with their idea that law must be predictable and certain. a judge bears major responsibility for ensuring certainty and stability. as having roots which “strike deep into the soil of national ideas and institutions. in this respect at least. and the inevitable gaps in the law to which it gives rise. common law systems regard flexibility as equally important.” For further discussion of Allen’s views and of the nature of the common law. judges play a pivotal role. And in an era when legislation has come to play a more prevalent role in common law jurisdictions. For while in civilian jurisdictions certainty is the fundamental goal. of course have its critics. see Mark Cooray in The Australian Achievement: From Bondage to Freedom (Epping.: Australian Achievement Project. Sing). while many common law countries have long 7 codified certain areas of law. The first response of many civil lawyers is to see judge-made law as somewhat inefficient. 1988). eg. the UK Bills of Exchange Act 1882 (45 & 46 Vict. but also for 7 8 Codification within the common law tradition dates back a long way – see. K. In common law systems. In fact. 2006 3 . some are never converted to the system and find its fluidity. Other notable examples of codified legislation include the Indian Penal Code (Central Act 45 of 1860) and Penal Code (Cap. but at the same time incomplete as an explanation or description of the relevant area of law. at least initially. N. Allen. JURISPRUDENCE Perhaps the most striking aspect of the common law system lies in the hugely influential role of judges. the extent to which certainty is valued in the civil and common law traditions is what really lies at the heart of the differences between them. Published by Berkeley Electronic Press. Although in time many come to appreciate the benefits of a system which provides for response to changing social circumstances. 1985 Rev Ed. In civil law systems. judges – at least in theory – have a purely interpretative role. and so civilians are quite familiar with their form and content. moulding and changing the law through case-by-case development. be overstated. Under the common law. within which doctrinal guidance leaves little room for individual discretion. As has already been observed. become ever fainter.S. Among the qualities of the common law are the fact that its case-by-case nature allows for both gradual development and timely response to the changing 8 requirements of society. 1964) at 71.Fordham: Comparative Legal Traditions being extremely detailed. Law in the Making (Oxford: Oxford University Press. B. however.
1013 4 . Vol. even if they are statements by the most eminent judges in the highest courts.com/asjcl/vol1/iss1/art11 DOI: 10. As a result. all decisions of higher courts contain multiple judgments. where judges are trained to adopt a concise and formalistic approach). and for whom English is often a second language. 1 . For someone new to the common law. http://www.2202/1932-0205. They learn that common law systems are less wedded to the notion of certainty than are their civil law counterparts. influenced by the decisions in earlier cases) but rather because the application of stare decisis necessitates a detailed analysis of often complex decisions in order to determine whether or not an earlier case must be followed. It is therefore critical within the common law process to determine the ratio of every case. Obiter dicta – i. The process of understanding common law jurisprudence and of applying the rules of stare decisis is complicated by the fact that. but they find this difficult to square with the reality of judges being bound to follow earlier decisions. a lawyer attempting to determine the ratio of a case has to draw from several – often subtly different – judgments the single point for which the case stands. however vehemently they may disagree with them. this is not always the case. Moreover. for example. While most civilian judges do indeed produce much shorter judgments than their common law counterparts. judges in subsequent cases frequently distinguish (and thus treat as not binding) authorities which might appear to other lawyers to be on point. The rules of stare decisis – under which a lower court must follow decisions of courts above it in the judicial hierarchy. It can take a while to come to terms with the inherent tension in the fact that. the decision on the facts. tend to be quite long and to discuss both prior cases and academic writing. Art. with certainty being 9 achieved through the rules of stare decisis.. are not binding. the process of working out exactly what a case has decided can be quite daunting. in common law systems. or binding precedent. of course. The opinions of German courts. Another obstacle to understanding posed by the rules of stare decisis is that many civilians see the rules as imposing a rigidity which they consider to be at odds with the general flexibility of the common law system. 1969) at 50-58 and “On the Convergence (and Divergence) of the Civil Law and the Common Law” in The Loneliness of the Comparative Lawyer and Other Essays in Foreign and Comparative Law (The Hague: Kluwer.Asian Journal of Comparative Law.. 11 exercising the discretion to change and develop the law. civilian judges are. But this can be a very difficult task. 1999) at 17-27. because it is often difficult to determine the precise ratio of a previous decision. Civilians 9 10 For further discussion of the differences between the civil law and common law systems see two works by John Henry Merryman: The Civil Law Tradition (Stanford: Stanford University Press. This is not so much because civil law jurisdictions do not recognize the significance of prior decisions (in practice. is binding.bepress.e. they can prove very problematic for civilians. Iss. to a large extent. while common law systems are. However. both because it is uncommon for a court to spell out the ratio of its decision and because common law judgments are often long and discursive (thus differing from judgments in civil law 10 jurisdictions. observations which are not crucial to the decision. thus preventing a multiplicity of inconsistent rules developing in any given area – are fundamental to the common law system. common law judges frequently have their hands tied when deciding the cases before them. philosophically driven by the desire to allow development.e. 1. Under the rules of stare decisis only the ratio decidendi of a case – i.
Only by constant exposure to common law reasoning processes. The common law can. C. the growing need to anticipate problems before they develop. judge-made law. particularly in areas involving the use of new or complex technology. given that a case may have to be heard at several different levels before it reaches a court with the power to depart from precedent. others are now governed entirely by the relatively familiar mechanism of legislation. more established. since purely judge-made law tends to predominate in older. Starting with relatively straightforward decisions containing single judgments. For a number of reasons. THE INCREASING SIGNIFICANCE OF LEGISLATION AND ITS EFFECT ON THE ROLE OF JURISPRUDENCE The increasing importance of statutes within common law jurisdictions sometimes leads civilian observers both to question the continued primacy of jurisprudence and to complain about the inconsistency of the sources of law. 2006 5 . therefore. and to judicial techniques. so too does the number of areas in which the law has a greater civilian feel. a civil lawyer has to be introduced to the process of drawing principles from multiple judgment decisions and to the judicial manoeuvring which is often involved in distinguishing unpalatable precedents. while some fields remain governed by rather unfamiliar. particularly in terms of summarizing decisions and explaining how a chain of cases has given rise to developments in a particular area of law. ‘low-tech’ areas.Fordham: Comparative Legal Traditions also consider this to be a somewhat cumbersome and unwieldy way to make law. The result for the civil lawyer is a somewhat bemusing mix in which. as has already been observed. but understanding the common law judicial process is primarily a matter of exposure and experience. In modern society. Moreover. Good textbooks and casebooks can be very helpful. only develop in response to circumstances. civilians may feel that jurisprudence as Published by Berkeley Electronic Press. while legislation is almost endemic in newer and more technologically sophisticated areas. The common law – based as it is on the values of the community and on general societal norms and expectations – can offer valuable guidance with respect to the acceptable parameters of legislation. For this reason. as the volume of legislation within common law jurisdictions grows. But it is inevitable that those with the task of drafting legislation in common law jurisdictions will be influenced by a plethora of additional concerns. since it is dependent on disputes being brought before the courts. can a civilian familiarize himself with the way in which law develops within common law systems. often resembling those which face civil lawmakers. the nature of case-law and the role of stare decisis can be sources of frustration and consternation to a civilian first exposed to the complexities of the common law world. has led in recent years to an exponential increase in both the role and the volume of legislation.
However. And while civil law is supposedly more complete and coherent. 1 . For example. argues that “the common law has been overlaid by statute and exists today in an emasculated form.com/asjcl/vol1/iss1/art11 DOI: 10. and that common law systems are slowly 11 espousing a framework which more resembles that of the civil law. if any. eg. Not all commentators see the increasing importance of legislation within common law jurisdictions as a good thing. there are areas of similarity.” For further discussion. 843 at 844.W.R. And even in technical matters.2202/1932-0205. for example. which are then decided on the basis of evidence brought before the court. in private law issues. the differences between the principles underlying the concept of separation of powers in common law and civilian jurisdictions are these days also acknowledged to be more apparent than real. against the over reaching and ever-expanding power of government. offer protection for individuals. for example.bepress. Conversely. proponents of the declaratory theory left to argue that common law judges may only find law 11 12 See. the judicial role has traditionally been seen as balancing the power of other branches of government. In common law countries. 11 a source of law is on the wane. The common law therefore. A civilian who becomes familiar with a particular area of common law may well. frequently rely on the parties to disputes to initiate actions. For similar reasons. there is a surprising degree of similarity between the two. Iss. Moreover. through legislation which often delegates powers to courts through general clauses. and are frequently called on to draw analogies in order to fill in gaps or reconcile apparently conflicting provisions. http://www. find that if he transcribes the relevant law into a civil law format. for example in family disputes. the most important of which are. the shared aspirations of regulating society. supra note 5 and Cooray. Vol.1013 6 . such as those relating to procedure. 1. supra note 8. does not. whereas in civilian jurisdictions it has been seen as applying law which is made by the legislature. civil law countries. civilian judges also have the ability – albeit within a framework less obviously tailored to judicial law-making – to adapt the law to meet changing social conditions and to assist in its evolution. III. just as it is these days recognized that common law judges make law (with few. see eg. and 12 particularly those involving the needs and interests of children. judges have to base their judgments on general principles. there are a large number of similarities. Luke Nottage. as it once did. Art. Since civilian codes tend to be written at a high level of generality. judges in normally adversarial common law jurisdictions on occasion adopt an inquisitorial stance.L. In addition.U. of course. supra note 8. resolving disputes and meting out justice in as even-handed a manner as possible.Asian Journal of Comparative Law. “Civil Law and Common Law: Two Different Paths Leading to the Same Goal” (2001) 32 V. SHARED VALUES AND INCREASED MUTUAL UNDERSTANDING BETWEEN CIVIL LAW AND COMMON LAW JURISDICTIONS Despite all the technical differences between the civilian and common law systems. Cooray. Tetley. in practice civilian judges face many of the same challenges as those faced by common law judges. like their common law equivalents. many of the apparent differences in fact relate more to form than to substance.
just as the increase in legislation in common law countries brings them closer to the position of their civilian equivalents.ca/~resulliv/legdr/pmr.Fordham: Comparative Legal Traditions which is waiting to be discovered). (For discussion of these approaches. Interpretation Act.g. Published by Berkeley Electronic Press. Universities in Asia generally taught law as a narrow – and largely domestic – discipline. it is also recognized that. “Statute Interpretation in a Nutshell” (1938) 16 Canadian Bar Review 1 and Ruth Sullivan. INCREASING EXPOSURE TO THE COMMON LAW WITHIN ASIA Historically the physical distance between Asia and major common law jurisdictions such as the United Kingdom and the United States meant that (unlike civil lawyers in Europe and South America) civilians in Asia were both physically and psychologically removed from common law cultures. 22. Sing) s. economic growth and co-operation. As a result.. Cap 1. eg. see Merryman. in both systems a historical lack of clarity with respect to the most appropriate approaches to statutory interpretation has been resolved by 14 preference for a purposive approach over the plain meaning or literal rule. and we are beginning to see far greater willingness to look outside our own legal heritage. and had little if any knowledge of legal systems outside their own sphere. This hindered both pan-Asian legal development and. as is evidenced by the growing willingness of common law judges to refer to the position under 13 civilian codes. “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation” <http://aix1. John Willis. There has. (See e.  1 AC 32. Traditionally. supra note 9. a number of sometimes contradictory approaches were employed when interpreting statutes in common law jurisdictions. 9A(1). even without the formal system of stare decisis. This increased the obstacles faced by Asian civil lawyers in understanding and gaining access to the common law. see Fairchild v Glenhaven Funeral Services Ltd  U. and law practices were confined within the same territorial boundaries. albeit less directly. The Civil Law Tradition. the introduction of more comparative law courses – and even specialized courses on the common law – within Asian universities means that aspiring lawyers within the region now have opportunities to learn about and understand other legal systems. 1999 ed. 2006 7 . however. nowadays the purposive approach is increasingly favoured in many jurisdictions. It is certainly true that there is more exchange between the systems than was historically the case. At an academic level. and that the role of judges is more creative than the nature of the system might suggest. so too the increasing reliance on precedents in civil law jurisdictions indicates a greater empathy with the common law world. jurisprudence plays a significant role in most civil law countries.L.uottawa. Such courses are often taught by 13 14 For a relatively recent example of a case in which the House of Lords in England varied the rules relating to causation of damage in negligence after examining the provisions of several civil codes together with the position in other common law jurisdictions. Cultural and legal influences are spreading. see. For further discussion of the civil law position. at 43-46. It can also be argued that. many Asian countries were unfamiliar even with the legal systems of their civilian neighbours.H.K. IV. In addition.html>. been considerable progress in recent years in addressing this somewhat isolationist attitude. However.
and thus to acquire hands-on experience of the common law. the United States. 1 . Art. This has fostered a level of understanding and acceptance unheard of only decades ago.2202/1932-0205. and the huge advances which continue to be made in terms of movement within. and thus offer the advantage of exposing students not only to the common law as a subject of study but also to the practical insights of those who have trained and worked within the system. and access to. Thus through ease of communication. has also created opportunities to obtain experience of the common law. The legal world is now. thus helping to remove much of the mystique which formerly surrounded the common law. Iss. Many Asian lawyers now enjoy the opportunity to work in foreign practices.1013 8 . 1. At a more practical level. Trans-national deals also expose them to the demands of negotiating with parties from common law systems. Due also to a general increase in academic exchanges with countries such as the United Kingdom.bepress. and working conditions which are increasingly international in flavour.Asian Journal of Comparative Law. a smaller and less disparate place. particularly in the major business hubs. 11 lawyers from the common law world.com/asjcl/vol1/iss1/art11 DOI: 10. Vol. the increasing number of common law legal practices which have established offices in Asia. a more flexible approach to the teaching of law. Canada and Australia – both at staff and student levels – there is now far better understanding of the common law world and a more relaxed attitude towards the differences between the civil and common law systems. one another’s systems suggest that integration of the world’s two great legal cultures is likely to increase exponentially in the coming years. both in their home countries and in overseas postings. the differences between predominantly civilian Asia and the major common law jurisdictions are becoming ever less significant. http://www. in a practical sense.
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