1. Comparison CONTINENTAL LAW & COMMON LAW
Continental Law and Common Law: Historical Strangers or Companions? Author(s): R. H. Helmholz Source: Duke Law Journal, Vol. 1990, No. 6 (Dec., 1990), pp
Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified) © Prof. William Tetley, Q.C.
Common law and civil law – differences, reciprocal influences and points of intersection , Dominik Lengeling Law firms Patrick Schindler / Schleifenbaum & Adler

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A comparative view seems particularly useful in our era of globalization with the interconnection of the markets and the accompanying necessity of orienting legal advice towards other legal systems. The topic seems to be also highly relevant because of the ongoing process of European unification, which also involves a certain degree of legal co-ordination of the English legal tradition with that of continental Europe.

3. Legal traditions or families
There are three highly influential legal traditions in the contemporary world: civil law, common law, and socialist law...
A legal tradition, as the term implies, is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition.
Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught.*
Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified) © Prof. William Tetley, Q.C. *

4. 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.
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.
* The Corpus Juris Civilis is the name given to a four-part compilation of Roman law prepared between 528 and 534 A.D. by a commission appointed by Emperor Justinian and headed by the juristTribonian. The Corpus includes the Code (a compilation of Roman imperial decrees issued prior to Justinian’s time and still in force, arranged systematically according to subject-matter); the Digest (or Pandects) (fragments of classical texts of Roman law by well-known Roman authors such as Ulpian and Paul, composed from the 1st to the 4th centuries A.D., arranged in 50 books subdivided into titles); the Institutes (a coherent, explanatory text serving as an introduction to the Digest, based on a similar and earlier work by the jurist Gaius); and the Novellae (Novels) (a compilation of new imperial decrees issued by Justinian himself). See A.N. Yiannopoulos, Louisiana Civil Law System Coursebook, Part I, Claitor’s Publishing Division, Baton Rouge, Louisiana, 1977 at pp [hereinafter “Yiannopoulos”].

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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.
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

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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. Forms of Civil Law Jurisdictions and How They Developed
Scotland and South Africa, for example, received Roman law and have retained it without benefit of codification.
Continental Europe received civil law from ancient Rome and then retained it by codification, imposed for the most part by victories of Napoleon. These codes include those of Parma (1820), Sardinia (1837), the Netherlands (1838), Modena (1852), unified Italy (1865), Romania (1864), Portugal (1867) and Spain (1889).
Other jurisdictions, particularly the countries of Latin America, Egypt, imitated the French Code (or others based upon it) in enacting their codifications.

8. French Civil Code
The French Civil Code of 1804 was no mere consolidation or systematization of existing law, but rather was intended to be a “revolutionary code”, reflecting the achievements of the French Revolution.
designed to remake the law in the image of a new and better society.
premise that for the first time in history a purely rational law should be createdmoral justification
was not to be found in ancient custom or monarchical paternalism but in its conformity with the dictates of reason.

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In fact, however, the revolutionary content of the Code (e.g. principles such as freedom and equality of all citizens and the inviolability of property) were balanced with more conservative notions, reflected especially in the pre-existing customary law of France’s northern provinces, which earlier scholars such as R.J. Pothier ( ) had striven to harmonize before the Revolution.

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The movement towards codification which the French Civil Code set in motion also gave birth to the German Civil Code of 1896 (in force in 1900), although its terminology is more academic and technical and its rules more precise than those of the French Code. The Swiss Civil Code of 1912, by comparison, is simple and non-technical, relying heavily on general principles. The combined French, German and Swiss influence influenced the codifications of Brazil (1916), Mexico (1928), pre-Communist China (1931) and Peru (1936). Japan adopted the German Civil Code in 1898 and Turkey, a translation of the Swiss Code in 1926.

11. Scotland
Not all civilian jurisdictions have, however, codified their private law. One of the striking examples of uncodified civil law is to be found in Scotland.
the age of the “reception” of “Roman Law” in Scotland, was really the fruit of the Renaissance and the reawakening of classical learning to which the Renaissance gave birth on the Continent. Scottish lawyers, trained in the great universities such as Paris, Orléans, Utrecht and Leyden, returned home imbued with the terminology, concepts and structured thinking of Roman law and familiar with the Institutes of Gaius and the Digest of Justinian, as well as with the writings of sixteenth and seventeenth century European civilian legal scholars. Civilian rules and principles were thus incorporated into the corpus of Scots law, to supply rules and principles which the old customary law could not provide

12. Common law
Common law is the legal tradition, which evolved in England from the 11th 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.

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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

14. Prior to the 19th century, absolute barriers between Continental law and the common law did not exist.

15. Magna Carta's provisions--chapter 61.
According to this chapter, if the king should fail to abide by the Charter's provisions in any particula matterr, a committee of four barons should refer the matter to a larger committee of twenty-five barons, who together would "distrain and distress [the king] by seizing his castles, lands, possessions, and in any other way they could until redress had been obtained."'" In other words, to enforce the Charter, this chapter legalized and provided an institutional framework for war between the king and his vassals.

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Chapter 61, however, was not just a bad baronial idea; instead it was an adaptation of a similar remedy found in the Libri feodorum, the collection of feudal law compiled in Bologna during the 1150s and routinely added at the end of medieval copies of the Corpus iuris civilis, which contained the basic texts of Roman law. Chapter 61 thus seems to be an adaptation from a Continental source.

17. SIXTEENTH AND SEVENTEENTH CENTURY COMMON LAW
The common law was vastly larger in scope and in sophistication. England was assertively Protestant in religion and had cut the ties that once connected it with the Roman Church. Moreover, common lawyers were self-conscious of the special role their law played in defining the rights and liberties of Englishmen. This was the age of Sir Edward Coke, the great English lawyer who (with Blackstone) probably did as much as any single individual to shape the common law.

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Insularity is commonly thought to be a far more salient characteristic. J. R. Tanner's description of Coke as "a mind fanatically narrow” only slightly exaggerates the widely held view that an unbridgeable gulf existed during this era between the English common law and the cosmopolitan traditions of the European ius commune. According to this view, if there were supporters of the civil law, then they were likely to have been partisans of royal absolutism, whereas most common lawyers-the enemies of extensions of the royal prerogative-necessarily were enemies of the civil law itself.

19. CIVIL LAW IN THE EARLY AMERICAN REPUBLIC
American usage of Continental ideas happened where the common law cases were abundant and clear enough, but were (in the opinion of American judges) mistaken. A South Carolina decision of 1818, dealing with the question of whether the seller of goods impliedly warranted their soundness, provides a good example. English law required an express warranty. The South Carolina courts did not.

20. mixed jurisdiction
The classic definition of a mixed jurisdiction of nearly one hundred years ago was of F.P. Walton: “Mixed jurisdictions are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law”.

21. … Common law/civil law mixed jurisdictions include
Louisiana, Québec, St. Lucia, Puerto Rico, South Africa, Zimbabwe (formerly Southern Rhodesia), Botswana, Lesotho, Swaziland, Namibia, the Philippines, Sri Lanka (formerly Ceylon), and Scotland.
It is also useful to remember that different mixtures of legal systems and institutions exist in the world today. Örücü, for example, distinguishes: 1) “mixed jurisdictions” such as Scotland (where the legal system consists of historically distinct elements but the same legal institutions) (a kind of “mixing bowl”); 2) jurisdictions such as Algeria, in which both the elements of the legal system and the legal institutions are distinct, reflecting both socio-cultural and legal-cultural differences (assimilated to a “salad bowl”); 3) jurisdictions such as Zimbabwe where legal dualism or pluralism exists, requiring internal conflict rules (akin to a “salad plate”); and 4) jurisdictions where the constituent legal traditions have become blended (like a “purée”), either because of legal- cultural affinity (e.g. Dutch law, blending elements of French, German, Dutch and Roman law) or because of a dominant colonial power or national élite which eliminates local custom and replaces it with a compound legal system drawn from another tradition (e.g. Turkey, blending elements of Swiss, French, German and Italian law).12 She also notes the existence today of “systems in transition”, such as Slovenia, in which only time will determine the character of the composite system now being developed.

22. Differences between common law and civil law
Common law and civil law legal traditions share similar social objectives (individualism, liberalism and personal rights) and they have in fact been joined in one single family, the Western law family, because of this functional similarity.

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This difference in priority can be explained by the role of the legislator in both traditions. French civil law adopts Montesquieu’s theory of separation of powers, whereby the function of the legislator is to legislate, and the function of the courts is to apply the law. Common law, on the other hand, finds in judge-made precedent the core of its law.

24. Statutes – Functions
Although statutes have the same paramountcy in both legal traditions, they differ in their functions. Civil law codes provide the core of the law - general principles are systematically and exhaustively exposed in codes and particular statutes complete them. Finally follows the jurisprudence.
Common law statutes, on the other, complete the case law, which latter contains the core of the law expressed through specific rules applying to specific facts. (It is not surprising that the English word “law” means all legal rules whatever their sources, while the French word “loi” refers only to written statutory rules. The word “droit” in the French civil law is the equivalent of “law” in English common law.)

25. 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.

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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.
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.

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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 mentioned Scotland, whose legal system is however influenced more and more by common law and therefore may better be qualified as hybrid legal system; another example is South Africa.

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Despite this prevalent view it is clear that in both legal traditions codes do exist and are applied by practitioners, but that these codes differ in their style: While civil law codes and statutes are mostly concise and do not provide definitions but state principles in broad, general phrases, common law codifying statutes provide detailed definitions and each rule sets out lengthy enumerations of specific applications or exceptions

29. Principle of precedents and doctrine of stare decisis
As another distinctive feature the principle of precedents may be considered, i.e. the method of common law to analyze previous court decisions, to find a general principle in each of them and to transfer these principles to a current dispute that needs to be decided. So civil law judges may be primarily bound to codes and reason, while common law judges are subject to the so called doctrine of stare decisis and thus in the first instance are bound by precedents rendered by higher courts. According to that, common law has a more hierarchical structure.
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.

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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. 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.

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The common law focuses on fact patterns. Judge analyzes cases presenting similar but not identical facts, extracting from the specific rules, and then, through deduction, determines the often very narrow scope of each rule, and sometimes proposes new rules to cover facts that have not yet presented themselves.

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The civil law focuses rather on legal principles. Judge traces their history, identifies their function, determines their domain of application, and explains their effects in terms of rights and obligations

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The doctrine of stare decisis has two components, a vertical and a horizontal one. The vertical component says that judges of lower courts are strictly bound to precedent decisions of higher courts, even if the lower court considers the decisionis not right. However, the inferior judges are free to express their opinion that they consider the binding precedent as wrong and they can also suggest an appeal

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. According to the horizontal component of the doctrine of stare decisis, precedents are binding not only for lower courts, but also for current decisions of the court that rendered the precedent, whereas although the judges are bound to the result of the precedent, they do not have to stick to the reasons given in the precedent case. A precedent is binding until it is overruled by a decision of a higher court or until it is overridden through a statute. A higher court can also reconsider and overrule its own previous decision.
It is remarkable – at least respecting the vertical component of the doctrine of stare decisis – that no written rule can be found in any common law country, which orders or enforces the binding effect of precedents

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But also this distinctive feature is not definite. On the one hand common law judges do not have to apply a precedent, if they point out that the alleged precedent is significantly different from the current case and therefore is not binding..
This process of pointing out the non-application of a precedent is called ‘distinguishing’ and can be mainly based on two reasons:

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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

37. Interpretation of laws
In civil law jurisdictions, the first step in interpreting an ambiguous law is to discover the intention of the legislator by examining the legislation as a whole, including the “travaux préparatoires”, as well as the provisions more immediately surrounding the obscure text.

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common law statutes have to be read against a case law background, while civil law codes and statutes are the primary source of law under Montesquieu’s theory. Secondly, civil law judges are influenced by Rousseau’s theory that the State is the source of all rights under the social contract, while English judges favour Hobbes’ theory that the individual agreed to forfeit to the State only certain rights

39. Appointment / selection of judges
Because of the important role of judges in common law, namely to decide what is the law, judges in the common law countries, particularly judges of the higher courts, are typically selected and appointed only from among experienced practicing lawyers.

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By contrast it may surprise common lawyers when telling them that it is quite usual in civil law to appoint young highly skilled but inexperienced graduates to judgeships. Although it is, for instance in Germany, well established practice to give recently appointed judges the opportunity to gain practical experience by serving at the beginning of their career in a chamber with two experienced judges, it is also not unusual for recently appointed judges to decide cases in lower courts as sole judges immediately after their appointment.

41. Procedural differences – adversarial vs. inquisitorial/proceedings
Court proceedings in common law may be described – at least in private law – as strictly adversarial. Court proceedings in common law may be described – at least in private law – as strictly adversarial. In this system the attorneys are responsible for presenting the facts of the case, the positions of each party and the legal views including all relevant precedents. In an ideal common law procedure the judge has the function only to manage the proceeding, to review all facts of the case and legal views presented to him and finally to decide the case on that basis, or when the case is tried by a judge and jury, to sum up the evidence and the legal principles for the assistance of the jury.
adversarial. : involving or characterized by conflict or opposition

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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.
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,

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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.

44. Reciprocal influences
The European unification
probably more important sector where civil law influences common law, is the European unification in which England (UK) has participated since 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. Consequently, English courts are also obligated to respect and to implement the jurisdiction of the European Court of Justice.

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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.