Are Common and Civi Law Merging?

In response to a student's comments concerning the differences between the Common and Civil Law systems.

Well done. I think that you identified both systems well. However, I will disagree with one commonly reported characteristic of Civil Law. That is the idea that unlike Common Law judges do not interpret the law. Words are very inexact things. When trying to apply a statute to the facts of an actual case there is no way around "interpreting" the law. The judge must decide what the words mean in light of the unique facts of each case.

The Common Law judge normally has a body of case law, which serve as precedents for the case. In other words, the judge will look at cases with similar fact patterns, and if the fact pattern is not distinguishable in a meaningful way from the case before him, he is bond to follow the precedent which is set by a higher court in his line of authority. If the precedent is the precedent of his own court, he must apply it or explain why the prior precedent should be overturned. However, overturning a precedent is not something to be done lightly. Cases which are not in the court's line of authority are not precedents, so the court may chose to follow the reasoning in such a case, but the case is not binding on the court.

A Civil Law judge faces this same task of interpreting the law given the facts in the case, but she is not bond by the decisions of prior cases, whether in her line of authority or not. The judge is technically required to simply read the statute and apply it to the case as she interprets it on her own. In this way, Civil Law judges actually do have much more leeway to interpret a statute than a Common Law judge. Practically speaking, a Civil Law judge may still feel more bound than this explanation would lead you to believe.

Technology is bringing these two legal systems closer together. When the Japanese decided to adopt the German Civil Law system in the late 1800s, rather than the English Common law, one of the primary motivations was the relative simplicity of the Civil Law. The Civil Law simply required that a court have access to the 6 basic codes or the Civil Law, while a Common Law system required that attorneys and judges have access to a well stocked law library. Imagine the task in the late 1800s of transplanting an entire English law library to Japan and translating everything in the library into Japanese. It was much easier to go with the six basic codes of the Civil Law.

Today, even though a Japanese judge is not bond by the decisions of the courts above him, he can easily access other court’s decisions through the Internet. Judges like all of us are not inclined to reinvent the wheel, if they do not have to. Thus, if there is a prior decision, which is on point, a judge is likely to follow it unless he feels strongly that the prior case is distinguishable or that its reasoning is faulty. This holds especially true for decisions from higher courts. No judge likes to have his decisions reversed on appeal. Thus, even if a judge is not technically bound by a higher court’s decision, why not follow the decisions of higher courts and minimize the risk a reversal?

In addition, Courts around the world now have easy access through the Internet to decisions of courts in other jurisdictions. They can see how judges in other countries have addressed similar problems. Organizations like the OECD and the United Nations are working to standardize laws in many areas. To accomplish this they draft uniform laws and treaties for nations to enact. Such standardization facilitates trade and transactions across boarders. Also, Common law countries for decades have been increasing their use of codified law and written regulations. This causes the Common Law to become more like the Civil Law. Thus, an argument can be made that over time these two legal systems will become more and more alike.

		December 28, 2005 *Are the Common and Civil Law Systems Merging?*
	In response to a student's comments concerning the differences between the Common and Civil Law systems. Well done. I think that you identified both systems well. However, I will disagree with one commonly reported characteristic of Civil Law. That is the idea that unlike Common Law judges do not interpret the law. Words are very inexact things. When trying to apply a statute to the facts of an actual case there is no way around "interpreting" the law. The judge must decide what the words mean in light of the unique facts of each case. The Common Law judge normally has a body of case law, which serve as precedents for the case. In other words, the judge will look at cases with similar fact patterns, and if the fact pattern is not distinguishable in a meaningful way from the case before him, he is bond to follow the precedent which is set by a higher court in his line of authority. If the precedent is the precedent of his own court, he must apply it or explain why the prior precedent should be overturned. However, overturning a precedent is not something to be done lightly. Cases which are not in the court's line of authority are not precedents, so the court may chose to follow the reasoning in such a case, but the case is not binding on the court. A Civil Law judge faces this same task of interpreting the law given the facts in the case, but she is not bond by the decisions of prior cases, whether in her line of authority or not. The judge is technically required to simply read the statute and apply it to the case as she interprets it on her own. In this way, Civil Law judges actually do have much more leeway to interpret a statute than a Common Law judge. Practically speaking, a Civil Law judge may still feel more bound than this explanation would lead you to believe. Technology is bringing these two legal systems closer together. When the Japanese decided to adopt the German Civil Law system in the late 1800s, rather than the English Common law, one of the primary motivations was the relative simplicity of the Civil Law. The Civil Law simply required that a court have access to the 6 basic codes or the Civil Law, while a Common Law system required that attorneys and judges have access to a well stocked law library. Imagine the task in the late 1800s of transplanting an entire English law library to Japan and translating everything in the library into Japanese. It was much easier to go with the six basic codes of the Civil Law. Today, even though a Japanese judge is not bond by the decisions of the courts above him, he can easily access other court’s decisions through the Internet. Judges like all of us are not inclined to reinvent the wheel, if they do not have to. Thus, if there is a prior decision, which is on point, a judge is likely to follow it unless he feels strongly that the prior case is distinguishable or that its reasoning is faulty. This holds especially true for decisions from higher courts. No judge likes to have his decisions reversed on appeal. Thus, even if a judge is not technically bound by a higher court’s decision, why not follow the decisions of higher courts and minimize the risk a reversal? In addition, Courts around the world now have easy access through the Internet to decisions of courts in other jurisdictions. They can see how judges in other countries have addressed similar problems. Organizations like the OECD and the United Nations are working to standardize laws in many areas. To accomplish this they draft uniform laws and treaties for nations to enact. Such standardization facilitates trade and transactions across boarders. Also, Common law countries for decades have been increasing their use of codified law and written regulations. This causes the Common Law to become more like the Civil Law. Thus, an argument can be made that over time these two legal systems will become more and more alike.