This note covers the following topics: What is Civil Law, Defining Elements of the Civil Law System, Trials and Rules of Procedure, Trends of Convergence Between Civil Law and Common Law Systems and Judicial Review: A Case Study in Convergence Across Traditions.
The process of globalization is intertwining the legal systems of all nations, making an understanding of our differences and similarities a useful, if not essential, tool for working in this new global environment. In terms of the post-conflict reconstruction and development projects, there are two predominant legal cultures involved in providing technical assistance: Common Law and Civil Law. Though these terms are frequently used as if they are self-defining, the contemporary reality is that it is increasingly difficult to identify countries with solely one legal tradition or the other. The cross-pollination between these legal cultures has enriched both traditions, creating a global legal mosaic. This trend has contributed to a renaissance in the study of comparative law. What was once considered an arcane field solely of academic interest is increasingly viewed as a practical asset. Legal professionals working across borders have found that the distinctions between, and within, the Common and Civil Law traditions have significance for their practice. Moreover, while differences are often presumed, a careful analysis sometimes reveals striking similarities that surprise members from both traditions. A basic understanding of these differences and similarities is the foundation of a common legal vocabulary and a necessary first step for bridging the divide between legal cultures. This Consolidated Response is designed to introduce professionals from outside the Civil Law realm to some of its core features, as well as draw distinctions with other legal traditions such as Common Law. This Consolidated Response does not attempt to introduce Common Law to Civil Law practitioners, nor does it attempt to describe the increasingly numerous hybrid systems. Rather, it purports to give a Common Law practitioner a basic introduction to the key features of the classic Civil Law system. Query: I am looking for a good summary of the major differences between Civil Law and Common Law systems that I can share with new staff and volunteers working on technical legal assistance projects in foreign jurisdictions. I would like to find something as brief and practical as possible. What are the best publications that are available? Response Summary: The conceptual distinctions between Civil Law and Common Law systems are noteworthy in certain areas, but at the same time, there appears to be growing agreement that the substantive differences are becoming increasingly less significant. However, in the context of rule of law promotion efforts, a basic understanding of the conceptual and practical differences, as well as similarities, is very important to collaborative efforts that cross these legal cultural boundaries in the field-work environment.
As an initial step, Common Law lawyers who wish to become conversant in Civil Law systems should develop a basic grasp of at least four aspects of the traditional Civil Law system. These can be broadly defined as follows: 1) Public v. Private Law: A conceptual distinction that shapes the structure of the Civil Law system; 2) Codes and Case-Law: Civil Lawyers look to the code and commentaries more than cases, and the doctrine of stare decisis (case-law precedent) does not per se apply; 3) Legal Education System: Civil Law is an undergraduate discipline that has a very different format from U.S. post-graduate legal education or U.K.-style undergraduate programs; and 4) Legal Profession: Civil Law lawyers often choose particular professional focal areas during or at the end of their law school, and they rarely switch professional paths later in their careers. With this context, the Common Law lawyer is well-equipped to understand the more intricate issues involved in the procedural rules that circumscribe and define the elements of both civil and criminal trials. Indeed, it is arguable that the Civil Law approach to trial procedure is where a Common Law lawyer will find the most striking differences. In many cases, a Common Law lawyer will expect to play a larger role in trial proceedings than his or her Civil Law counterpart. Interestingly, these sharp distinctions in terms of approach have softened substantially in the area of constitutional judicial review. Though the procedures will still differ in practical terms, the outcomes may actually be substantively similar regardless of the traditional categorization of a country as Civil or Common Law in approach. Legal cultures that follow the doctrine of parliamentary supremacy, e.g., England and France, will not permit courts to overturn parliamentary acts without the consent of the legislative bodies. Likewise, legal cultures that embrace constitutional control of parliamentary acts, e.g., Germany and the United States, will not only allow for judicial examination but also enforce constitutional rulings that reject ordinary legislation on constitutional grounds.