Compare common law /civil

law
Characteristics
Jurist vs. judge
National identity

Dichotomies
Public law vs. private law
Civil law vs. commercial law

Appraisal of civil law

What does civil mean?

Civil practice
Civil procedure
Civil law
Civilian court

Pope Gregory Receiving Canon Law (Stanza della Segnatura)

Compare common law /civil

law
Process of national unification
Common law:
Civil law:

Check on judicial arbitrariness

Common law:
Civil law:

Unification actors
Common law:
Civil law:

Compare common law /civil

law
Process of national unification
Common law: unifying force in England (1066)
Civil law: codes (citizens) on Continent (1804)

Check on judicial arbitrariness

Common law: jury, stare decisis
Civil law: written legislative law / ancien regime

Unification actors
Common law: bench and bar
Civil law: university-taught writers / professors

Hugo Grotius (1583-1645)

Dutch legal scholar, playwright, poet
natural law philosopher
"social contract" theory of State
seas free for mutual benefit of all
Father of international law
"property" from social consent
nothing "inalienable about it

Lord Mansfield (1705-1793)

Chief Justice of England
Kings scholar - Oxford (1726)
called to bar, notoriety (1730)
House of Commons (moderate)
chief justice kings bench (1756)
six reversals in 32-year career
founder of commercial law
(nearly all principles)

Compare common law /civil

law
Civil law
Roman-influenced
University-taught,
professor-inspired
Formed across continent
(ius commune / Latin)
Distrust of judicial power

Dichotomies
Public law vs. private law
Civil law vs. commercial
law

Common law
Local customs (some
Roman)
Judicial / bar
Centralized government
(royal courts)
Respect for judges

Dichotomies
No public law in England
Common law adapts to
changing economy

What is public law? (in civil law tradition)

Roman law (Ulpian):
quod ad statum rei Romanae spectat
to the condition of the Roman state)

(that which refers

Ad singulorum utilitatem (private interests of individual)

focus of Justinian Digest, Institutes

Expanded as jurists move throughout Europe

legislation, public officials, procedure, tax, public
duties
Become dependent on sovereign

National constitutional law / administrative law

Constitutional republics
Social legislation and specialized courts

Public law in England

Public authorities subject to common
law jurisdiction
Habeas corpus, mandamus
Tort actions against public figures
Review of administrative acts

No Constitution
Omnipotence of Parliament
Separation of powers: no judicial review

Compare common law /civil

law
What does Venice
have to do with the
common law of
England?
Who wrote the
Merchant of
Venice?

What is commercial law?

Roman law unsuitable for commercial
disputes
Limits on freedom of contract, acting through
agents
Protection of debtors / usury rules
Slow procedure

Medieval customary law (law merchant)

Developed by guilds and corporations
traveled with merchant (choice of law)
Guild (later merchants) elect own judges
Procedure: like arbitration

National commercial law

Civil law rules based on law merchant
Freedom of contract, alienability
Ex aequo et bono: According to what is right and
good.
Separate commercial code / courts (public choice)

English common law

Absorbs law merchant in 17th and 18th Centuries
Negotiable instruments
Inductive, practical, non-scholastic

Lex Mundi Project

Law firms from 109 countries responded

to questionnaires
Describe claims (eviction and check collection)
Characteristics of parties and merit of
positions
Not reading of laws / actual practice

Lex Mundi Project

Do common law or civil law courts enforce
contracts more efficiently?
Landlord evicts non-paying tenant
Creditor collects bounced check

Enlightenment idea: court access to ordinary

citizens
Measure deviation from simple neighbor model
Formalism -- Quality of justice
Quality of justice -- Legal system

Lex Mundi Project

Measure formalism
Access: need for lawyers, formalities to bring
Ease: oral vs. written procedures
Legalism: need for justifications
Information: regulation of evidence
Superior review
Count # procedural steps

Measure quality of judicial system

Duration of proceeding
Fairness, consistency, honesty (survey small firms)

Identify types of courts (transplanted legal

systems)

Lex Mundi Project

Findings (formalism):
1.
2.
3.

Legal origins explains 40% of formalism

Formalism prevalent in civil law countries
Formalism greater in less developed vs. richer
countries

Findings (quality per capita income

constant):
1.
2.

Formalism predicts duration of eviction, check

collection
Formalism correlated to less access, higher judicial
inefficiency, higher corruption, less fairness

Lex Mundi Project

Consistent with the literature on comparative
law, we find that judicial formalism is
systematically greater in civil law countries,
and especially French civil law countries, than
in common law countries.
Formalism is nearly universally associated
with lower survey measures of the quality of
legal system, including judicial efficiency,
access to justice, honesty, consistency,
impartiality, fairness, and even human rights.