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? • How many of you have employers paying for your participation in this program? • How many of you intend to return to your previous employer • How many of you want to work for: • International organization • Multinational company • International law firm • Academia
Major Legal Traditions 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)
Hammurabi the law giver • I, Hammurabi, have been called by the great deities.I am the shepherd • who brings well-being and abundant prosperity; • my rule is just.So that the strong might not oppress the weak, • and that even the orphan and the widow might be treated with justice, • I inscribed my precious words • on my stele called "King of Justice" in Babylon.
Bablyon • Global inter-connectedness even in antiquity • To the extent that we do not understand another culture, its traditions and its conflicts- we will struggle due to misunderstanding • Might current conflict in Islam between Sunnis and Shiites/ contest of Wahhabism and more moderate strands be analogous to splits in Christianity before the Renaissance– if so, what might their oil wealth portend for the future
Jus Civilas • Emperor Justinian’s codification of the decisions and pronouncements of the Roman tribunals • Fall of Roman Empire and resulting legal vacuum • Scholars preserve codes and advise feudal lords
Middle Ages • Trial by battle or physical test replaced the courts of Rome
Ecclesiastic Courts • People seeking justice and deterred by the more violent methods turned to the only other authority • Sought the intervention of clerics in the Roman Catholic Church • Canon law and Ecclesiastic Courts provided an alternative authority for the resolution of disputes
Canon Law • What recent movie tells a tale of Canon law?
Shakespeare’s • The Merchant of Venice • The Character is: Shylock • The issue is: the Catholic prohibition against the lending of money for interest • What is the price for failure to repay? • What is the solution?
What is a similar contemporary legal proscription? • The Islamic prohibition against the lending of money for interest • Development of Islamic financial devices to avoid characterization as interest [Query: Is this more enlightened than Christian approach towards Jewish moneylenders?] • Knowledge of history, religion and culture important in understanding the influences which impact successful building of global business relationships
England’s divergence from Continental Europe’s legal tradition • So what event brought about the divergence of England from the traditions of Roman and Catholic church law?
A Hint- A Famous Battle • Defeat of King John at Runnymede in 1215
Magna Charta • Abuses by King John caused a revolt by nobles who compelled him to execute this recognition of rights for both noblemen and ordinary Englishmen. It established the principle that no one, including the king or a lawmaker, is above the law.
Magna Charta • Among its restrictions is the establishment of the right to trial by jury of ones peers: • 39. No freemen shall be taken or imprisoned or disseised [sic] or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.
Continental Europe • Influenced by the Renaissance, continental scholars continued the tradition of researching and passing on the accumulated legal traditions • Conclusion reached that law is a natural science • From proper study of law one can discern the principles by which society should be organized and laws promulgated
Continental Europe • The consolidation of continental Europe was brought about by force-
Code Napoleon • Napoleon brought together the learned jurists within the Empire to draw up a comprehensive set of codes consistent with natural law by which all subjects could understand their rights and obligations to one another and the state
Code Napoleon • From exile in Elba, Napoleon remarked: • It would be his greatest and most enduring legacy • which would live beyond his defeat at Waterloo
Code Napoleon • His observation was apt- • Outside of the countries following the English common law tradition, the organization and structure of his Code endures • It has been carried by Spanish conquistadors, Dutch navigators and Portuguese adventurers as they conquered the New World and extended their empires
Aside: Philippines • In the late 1980’s, we sought to invest in the period shortly after Benito Aquino’s assassination. • We found the legal system and society to have been imbued with civil law administrative bodies from the Spanish era, with a US oriented court system, American style lawyers and bound by Confucian principles followed by the wealthy ethnically Chinese families that dominate the economy.
Divergent Strands • Within the civil law tradition there are a number of divergences based on: • German, French and Spanish developments • Latin America influenced by American revolution but retained civil law tradition and adhered to it more rigidly than Europe
German Civil Law • In the early Twentieth Century, Germany was perceived to have the most modern and logically developed set of coherent legal principles • The Germanic constitution and codes significantly influenced China, Japan and other countries trying to establish modern republican forms of government
Deng’s Transformation of China • When Deng encouraged trade and investment with Western economies • Chinese bureaucrats needed some point of reference in order to establish rules for such relationships • Communists looked to pre-World War II civil and commercial codes introduced by Sun Yat-sen for the republic
Second Half of Twentieth Century • Post World War II (tremendous growth in Western trade) • Economic and military power of US brings about emulation of American legal model- antitrust/ securities issuance and regulation/ environmental • Acceleration following collapse of Soviet Union • Opening of PRC
Multilateral Institutions • US and UK principal proponents of the development of multilateral institutions- • United Nations • World Bank • IMF • WTO
Continuing Western Law Advances • The Western powers continue to promote and support globalization and a restrictive theory of sovereignty evidenced by • UN Centre for the Resolution of Foreign Investment Disputes • New York Convention for Recognition and Enforcement of Foreign Arbitral Awards • Dispute Tribunals of the WTO • EU Court of Justice with jurisdiction over 25 sovereign nations
Relatively recent easily amended comprehensively addresses relations between –state- government- people Constitution subject to will of people as determined by legislature Long standing not easily amended Enunciates a few principles in expansive terms Constitution is paramount statement of will of people to which government, including legislature is subject Differences between civil and common law1. Constitution
A comprehensive set of codes adopted by legislature set forth in a logical scheme Addressing all issues (comparable to US Internal Revenue Code) Judicially developed principles derived from cases or legislative enactments Differences between civil and common law2. Law
Inquisitorial 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) Adversarial Judge and jury Proceeding culminates in a trial dominated by lawyers with judge as referee Differences 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 court Differences 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 outcomes Differences between civil and common law7. Legal Education
Many persons study law and go into other fields Admission to practice before courts restricted Persons have diverse academic background or experience A professional course of study dedicated to practice of law Differences between civil and common law8. Lawyers
A public functionary 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 signing Differences between civil and common law8. Lawyers- Notaires
Anecdotes about Differences • Civil Law tradition arises from articulation of rules by an absolute monarch – populace seeks an authorization before taking action • Common Law tradition evolved from the constraint of the monarch’s powers – populace takes initiative unless there is rule prohibiting - American manager to European counterpart- why won’t your team just “Do It”
Anecdotes about Differencescon’tued • Civil law lawyer trained specifically to understand and apply the Codes • Common law lawyer trained to create an argument in favor of client • American business persons often frustrated when a civil law adviser doesn’t perceive it as his/her role to create a means of achieving the commercial goal
Anecdotes about Differences • Person from a civil law background who expects an answer to exist in Codes becomes uncomfortable when American counsel advise that there may be several inconsistent arguments and alternative outcomes
Anecdotes about Differences • Business persons from civil law background often suspicious of Americans who come armed with their lawyers. • Implies an intent to resort to legal rules rather than an intent to fashion a commercial resolution if trouble arises.
Anecdotes about Differences • For example in many situations as international counsel, non US managers would be uncomfortable introducing me to customers as a lawyer. • They would ask if they could just introduce me as staff from headquarters. • In communist countries, my role would analogized to that of the communist party representative- as having substantial authority but reporting to a separate hierarchy from the business managers.
Anecdotes about Differences 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.
Anecdotes about Differences • In most civil law systems, the losing party is required to pay the prevailing party’s legal fees. • This is a deterrent to initiating frivolous lawsuits or for a party to run up legal fees in an effort to outspend a financially weaker party.
Anecdotes about Differences • Damages in the civil law system generally substantially lower than in US cases, however, there are usually a greater range of social services to compensate the harmed individual- broader health care, termination indemnities, disability compensation et cetera. • Lower damages have less likelihood of having an in terrorem effect, but, civil law more often has a criminal aspect to liability.
Anecdotes about Differences • Generally the process of starting a new business or expanding an existing business in a civil law environment will require more permits and bureaucratic authorizations than in common law countries. (Eg. Forming a company) • Disputing a denied permit in a civil law system will likely be by appeal within an administrative hierarchy (with a preference for ratifying the decision of the administrative body- similar to social security claims in US) • rather than a resort to a court of general jurisdiction as in common law system