1. Comparative Law – Continental Law
Prof. Giorgio F. COLOMBO

2. Main Features of the Civil Law Systems
Lesson n.6

3. Common Law ≠ Civil Law? The partition is not sharp
There is no example of a «pure» Civil Law or Common Law jurisdiction
Every legal system is «mixed» to some extent
«Mixed legal systems» are something else, tho
Convergence of models
Importance of statutes in Common Law
Importance of precedents in Civil Law

4. Common Law ≠ Civil Law? Civil Law and Common Law traditions
Also: framing traditions in practical terms (CISG)
Misconceptions and stereotypes

5. Civil Law A written Constitution (and often a Constitutional Court)
It does not mean that Common Law systems do not have a Constitution
«Uncodified Constitution»
The control over the respect of the Constitution is generally centralized

6. Civil Law A codified legal system
Common law jurisdictions are also full of codes
The practical and philosophical role of the Codes, however, is completely different
Pretension of comprehensiveness
Creation vs. Restatement

7. Civil Law Statutes are the main source of law
Again, in Common Law jurisdictions there are plenty of statutes
However, the main source of law in Common Law jurisdictions is the activity of judges

8. Civil Law Court decisions are not formally binding «Formally» binding
However, extremely important. Why?
Authority
Hierarchy (e.g. Japan)
Other reasons (e.g. China)
Exceptions: Constitutional Court, etc.

9. Civil Law Public law vs. Private Law
The relationship between the State and the citiziens is different than that between private individuals
Matters of public law are dealt with in administrative courts

10. Civil Law Litigation is inquisitorial
In Common Law is mainly adversarial
Judge as an actor vs. Judge as a referee
Influence of Canon Law
Acquiring evidence, summoning parties, etc.

11. Civil Law Role of the judge «La bouche de la loi»
Not supposed to be creative/look for solutions
Active role in managing the litigation
Elected judges basically do not exist

12. Civil Law Legal education is different Law as undergraduate
Law degrees
Training after graudation before qualification
Vast knowledge of law vs. versatile knowledge of many subjects

13. Civil Law Lawyers and judges follow separated careers
Judges are public officers trained separately from lawyers. Their career is normally entirely in the judiciary (exceptions: Supreme Courts; summary courts)
The paths may diverge immediately (France, Italy) or after acquiring a qualification (Germany, Japan)

14. Civil Law Scholars are extremely influential
«The civil law is a law of the professors» (Merryman)
Ancient tradition
Conflict with the legislators/fictions

15. Civil Law
Ordinary citizens are only marginally involved in the administration of justice
The Jury in civil litigation is basically absent
In criminal procedure is a support to the judge, but it is a mixed jury where professional judges have a leading role

16. Civil Law Access to upper jurisdictions is easier
Appellate courts review also issues of fact
Supreme courts (Cassation) only review the law
Not really a third instance but a decision on lower judgements – no «decision»

17. Civil Law Many other features
Litigation mainly documental: exchange of briefs rather than dynamic hearings
No division between law and Equity
There is no idea of discovery
Wide abstract notions: juristic act, good faith, etc.
Damages are mostly restitutory in nature