Week 3: Focus on the common law and civil law divide

Hello,

This week my work will be focused on the differences between the common law and civil law traditions. My sources are the lectures dispensed by Dr Chloe Wallace, the textbook « Constitutional and Administrative Law » written by Bradley and Ewing, the texbook « English Legal System » written by C. Elliot & F. Quinn but also some lectures dispensed in France in constitutional law.

The common law is deeply rooted in the decisions taken by the King’s judiciary, namely the rules come from particular cases, with an inductive reasoning. Those particular facts and cases are judged, give rise to a solution given by one or several judges: from those judgments emerge rules and principles, which can be found in the ratio decidendi given by the judges. The ratio decidendi has been described by Sir Rupert Cross as ‘any rule of law expressly or impliedly treated by a judge as a necessary step in reaching his conclusion »: it is the most important part of the decision, opposed to the obiter dicta. An important figure, maybe the most important figure in the common law tradition is that of the judge, because of the significance and of the role of his or her decisions, but also because they were long ago on the behalf of the King to create the laws before the Act of Settlement 1700 which granted Parliament more independence (Elliot & Quinn). Therefore it appears that the common law traditions is characterised by a top-down system, with the rules constructed by the courts.

Does it mean it is unfair ? Does it mean that it leads to arbitrariness from judges ? Arguably, not. Over time, a hierarchy of courts has developed, and, generally, the lower courts are bound by the higher courts; this hierarchy has developed and with it the idea of binding precedent, namely a judge must respect a decision given by a higher court in cases where the facts are the same. It provides certainty and predictability to the law, and also fairness: same cases are treated alike. Moreover, it provides efficiency (the courts will not have to solve again and again the same problem) and it permits to unify the law.
There are also statutes, which are the Acts of Parliament, and are interpreted narrowly. They are useful to modify or clarify the case-law, sometimes to complete it, but are the product of policy, very often from the Government through its majority in the Commons (Bradley & Ewing, Constitutional & Administrative Law).
By contrast, the civil law comes from Rome, and from the rules under the Republic and Empires during the Antiquity. Those rules have been discovered at the end of the 11th century, more precisely in Italy, in Bologne, and have led to important thinking by scholars, which developed and expanded in Universities in the continent, in countries such as France, Germany and Spain.
It is, in theory, completely different from the common law tradition, because here the rules are abstracts, and are written in codes. There are general principles contained in codes, and solutions are given in a case-by-case basis, applying the rules from the codes. It is therefore also a top-down system, because the rules are (ideally) decided by the legislator. Why are the codes so important ? Because, in this tradition, it aims at covering entirely a particular field of the law, for example the criminal law (with the « Code pénal » in France) or the civil law (the « Code civil »), and because there is the objective of accessibility of the law, according to the latine principle « Nemo censetur ignorare legem »: no one must be ignorant of the laws, everyone must know the laws. The decision-making by judges is clearly deductive, logic: there is the law, then there are the facts, and if the facts correspond to the law, therefore the law apply to them. We have seen that during the lecture with the prohibition of the intentional murder.

Philippe

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