The Civil-Common Law Divide. Washington University School of Law International llm program. Introduction. Thank you for Invitation Questions for audience- How many of you have studied comparative law? For how many of you is this your first semester of study in US?
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School of Law
International llm program
Lecture focuses on differences between civil and common law
Tangential references to other major systems- Marxist/ Islamic/ Confucian
Why does it matter-
Sports Analogy (Baseball – Golf)
antitrust/ securities issuance and regulation/ environmental
Relatively recent tradition
comprehensively addresses relations between –state- government- people
Constitution subject to will of people as determined by legislature
not easily amended
Enunciates a few principles in expansive terms
Constitution is paramount statement of will of people to which government, including legislature is subjectDifferences between civil and common law1. Constitution
set forth in a logical scheme
Addressing all issues
(comparable to US Internal Revenue Code)
Judicially developed principles derived from cases or legislative enactmentsDifferences between civil and common law2. Law
One or a panel of judges
Judge actively participates in seeking of evidence and examining of witnesses
(does not culminate in a trial like in US)
Judge and jury
Proceeding culminates in a trial dominated by lawyers with judge as refereeDifferences between civil and common law3. Courts
Courts are dedicated to specific areas of law ( criminal, labor, commercial, et cetera)
Separate appeals courts for specific- civil/ administrative processes
Courts of general jurisdiction hearing all matters
Single hierarchical appellate process culminating in a supreme courtDifferences between civil and common law3. Courts
A profession selected by student as a career choice and similar to a civil service position in which advancement is by tenure.
Generally selected after demonstration of competence in practice.
Elevation to higher courts based on demonstration of demeanor and ability.Differences between civil and common law4. Judges
A limited set of submissions by each party, responses to inquiries from court and correction of record by each party.
(No discovery in sense of American practice.)
Each party fashions a series of inquiries, examinations and review of all relevant documents and testimony prior to organizing into a presentation to court.Differences between civil and common law5. Evidence
Preference for written documents based on underlying belief that people will lie
Preference for oral testimony based on underlying belief that papers can be forged but that the truth can be better determined in a face to face confrontation before the tribunal.Differences between civil and common law5. Evidence
Judge uses deductive reasoning to determine applicable sections of Code.
Inappropriate for Court to fashion a remedy not set forth in the Code
Judge uses inductive reasoning about the facts, applicable prior cases and relevant law to reach a decision
Court may fashion an equitable remedy- one that is “fair”Differences between civil and common law6. Decisions
Student commences legal study immediately upon completion of secondary school
Limited liberal arts/sciences curriculum
Lectures based on learned writers about the Code
Post baccalaureate degree
Inter-active discussion about significant cases, their relevance and possible alternative outcomesDifferences between civil and common law7. Legal Education
Many persons study law and go into other fields secondary school
Admission to practice before courts restricted
Persons have diverse academic background or experience
A professional course of study dedicated to practice of lawDifferences between civil and common law8. Lawyers
A public functionary secondary school
Usually limited number (hereditary or political grant)
Person authenticates signatures, public instruments, validates wills, property transfers
Responsible for accuracy of form (more like US Recorder of Deeds office)
An insignificant public role
Usually obtainable upon payment of a fee
Merely attests to identity of person signingDifferences between civil and common law8. Lawyers- Notaires
- American manager to European counterpart- why won’t your team just “Do It”
We had manufacturing operations in 16 countries on four continents, my counterparts at headquarters were always recommending US law and US courts.
I advised that it was preferable to recommend the jurisdiction of foreign law and courts when appropriate, because even if we lost - the worst outcome could not be as costly as a loss in the US system.