Common Law vs Civil Law: Differences, Methods, and Reciprocal Influences - Prof. Villacamp, Apuntes de Administración de Empresas

¡Descarga Common Law vs Civil Law: Differences, Methods, and Reciprocal Influences - Prof. Villacamp y más Apuntes en PDF de Administración de Empresas solo en Docsity! Descargado en: patatabrava.com COMPARATIVE INTRODUCTION TO LEGAL SYSTEMS (UDL) COMPARATIVE INTRODUCTION TO LEGAL SYSTEMS. VILLACAMPA, CAROLINA 12-13 Common law and civil law – differences, reciprocal influences and points of intersection Dominik Lengeling Law firms Patrick Schindler / Schleifenbaum & Adler Toronto / Siegen 2008 4 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). 5 2. Common law Common law is the legal tradition, which evolved in England from the 11 th 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). 6 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). 9 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). 10 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). 11 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). 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). 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). 21 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). 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). 29 The Code Civil du Bas-Canada came into force on August 1 st 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 1 st 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 12 th 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