Legal and Judicial Traditions. The process of globalization increasingly intertwines the legal systems of all nations, making an understanding of our differences and similarities a useful, if not essential, tool for working across borders. In the West, there are two predominant legal cultures, common law and civil law. While vast differences are often presumed, even a basic understanding of both legal traditions reveals a striking number of points of convergence, and even where differences remain, an introductory vocabulary regarding the two is sufficient for meaningful discourse among assistance providers and counterparts that have been raised in differing legal cultures. Here, New-Rule explains key elements of the two systems. While other legal traditions are increasingly relevant to ROL activities, e.g., shari'a law, a discussion of the full range of traditions is beyond the scope of this basic webpage. New-Rule anticipates others to be forthcoming. Our mantra is to push knowledge to the forefront. Share and challenge to exceed is our approach. 

Codes and Case-Law

The most common distinction noted is probably the difference in the way in which the two Western traditions approach codes and case-law. The standard axiom is that civil law systems are based on codes, and common law systems are based on case-law. Civil law systems commonly trace their ancestry to the 6th Century and the Roman Emperor Justinian’s massive codification project, the Corpus Juris Civilis. Common law systems typically trace their ancestry to England and judicial decisions dating back to the early period of the British royal monarchy. However, today, this distinction in and of itself does not prove particularly enlightening. Common law systems have massive codes comparable to civil systems, and civil law systems increasingly embrace case-law in some form. Where the differences are more significant is at the conceptual level.

In civil law systems, the core codes share a similar architecture by design. As a general proposition, all civil law systems base their legal system on four codes: the civil code, civil procedure code, criminal code, and criminal procedure code. These codes are drafted as a coherent set of principles that are intended to provide an organic framework from which the rest of the legal system can be structured. Given the organic nature of these laws, a civil law lawyer frequently commences his or her legal research consulting one of these codes.

In contrast, common law codes do not generally share such a coherent structure, and they are frequently more detailed and case specific. This approach reflects a more piecemeal approach to the drafting of laws, which is typically driven by contemporary events and circumstances arising in case-law. Thus, though a common law legal practitioner may also start his or her research with a code provision, there is a high degree of likelihood that case-law will need to be consulted immediately to fully appreciate the underlying principles and considerations.

Moreover, the common law doctrine of stare decisis requires this attention to case-law, for the failure to identify and analyze the relevant cases could be tantamount to malpractice. Case-law precedent is law in the common law system, and a judge is required to apply precedent to cases before him or her. Thus, a single, controlling decision from a higher court may be dispositive of a particular controversy. Outside of the constitutional realm, a single case would generally not be considered to have such dispositive force in a civil law system. For case decisions to have a similar effect, they must reflect an established pattern of decision-making. A series of cases enunciating and supporting the same rule is required, and only when this consistency is present will legal scholars classify the case-law as jurisprudence constante, signifying an established, persuasive line of legal reasoning.

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Judicial Review

The limited influence of case-law in civil law countries is consistent with historical differences in the role of judges. At the time of the French Revolution, judges in France wielded great power—and in many crucial aspects, irresponsibly. Afterwards, Continental legal professionals agreed on the necessity for corrective measures, and these reforms cast civil law judges in the role of government civil servants, as opposed to members of a co-equal branch of government. Consequently, it is not surprising that the acceptance of any variant of the concept of judicial review has developed more slowly in civil law systems, and even to this day, some civil law countries do not have judicial review as understood in American legal parlance.

The Continental measures taken to remedy and avoid the judicial abuses of the French Revolution promoted the concept of parliamentary supremacy. In contrast, the common law is more associated with the concept of judges serving as a check on the powers of the other branches of government. This function does not signify freedom from legislative direction, but rather, it suggests that the legislative branch, like the other branches, operates within, not above, the larger constitutional framework. 

Shortly after the French Revolution, the U.S. Supreme Court formally embraced this understanding in Marbury v. Madison, establishing a central, constitutional role for the American judiciary. Asserting the power of the judiciary to review legislative and executive acts for their constitutionality, the U.S. Supreme Court unequivocally declared the judiciary to be a co-equal branch of government.

If all common law systems possessed Marbury judicial review, the classification of legal systems would be greatly simplified. However, this type of judicial review is not found in all common law jurisdictions, and as noted, very similar review powers can be found in some civil law countries. For example, England, the ancestral home of common law, historically did not possess this type of judicial review, and Germany, a pillar of the civil law tradition, has a Constitutional Court that exercises powers quite similar to this form of judicial review.

The German Constitutional Court, or Bundesverfassungsgericht, serves as the final arbiter in all constitutional matters. The claims brought before the court can range from alleged violations of individual civil liberties to disputes among government institutions regarding their powers and competencies. Cases typically come to the Constitutional Court through individual petitions and referrals from ordinary courts.

In contrast to the American system, where lower courts commonly decide novel constitutional questions, German ordinary courts refer such constitutional disputes to the Constitutional Court for resolution. This variant of judicial review is commonly referred to as “centralized” judicial review, to be contrasted with the American system of “diffuse” judicial review. The rationale for centralized review has roots in the Continental reforms that followed the French Revolution. Consistent with the concept of judges as civil servants, the German system does not empower ordinary judges to serve as a check on the powers exercised by the other branches of government.

Moreover, while the Constitutional Court is a “judicial” body, German legal practitioners will emphatically insist that it is not a part of the judiciary. Because checking the power of other government institutions is a political act, they maintain these duties must be conducted by a political, as opposed to a judicial, body. Consistent with this approach, the members of the Constitutional Court are political appointees selected for staggered terms by the legislative branch.

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Trials and Rules of Procedure

Despite the deferential posture of ordinary civil law courts on the issue of judicial review, the “inquisitorial” systems of the Continent place more responsibility for the trial procedure on the judge than is typical for a common law court. By way of contrast, the adversarial model that is usually employed in common law systems places more responsibility on the litigants.

As with other distinctions, this difference has become less pronounced in recent years, but it nevertheless continues to shape many aspects of trial procedure. From a U.S. technical assistance perspective, one of the most crucial to understand is the “investigative judge”, which is wholly foreign to our system. The investigative judge has the main responsibility for preparing the initial record for the trial, involving significant interaction with law enforcement and prosecutors in some cases. While civil law investigative judge is on the decline in civil law systems—with increased responsibilities shifting to prosecutors—where present it is crucial to acknowledge their key role.

Perhaps most notable for a common law practitioner is the difference in discovery and evidence rules and procedures. In a civil law system, “fishing expeditions” are not generally permitted. That is to say the investigation of facts likely to lead to an admissible fact is circumscribed. Civil law judges guide the gathering of evidence as a rule, and while litigants may be involved in the process, they do not orchestrate the presentation of evidence, nor block a particular piece from becoming part of the court record. Reforms in common law discovery practice have also increased the role of the judges in discovery, but the litigants remain the driving force, possessing developed rules to make their case as a trial proceeds.

Similarly, the civil law judges generally handle the questioning of witnesses. Civil law litigants do play an active role in formulating questions for the judges to pose, but a direct, active role, such as in cross examination, is not the rule. The limited role of civil law litigants is not only a function of judicial authority, but also it reflects the civil law system’s bias against witness-based evidence. Civil law systems commonly consider witness testimony one of the lowest standards of proof.

In contrast, common law systems are characterized by litigant examination of witnesses under judicial supervision. While it is acknowledged that witnesses are human and, as such, not objective, common law systems rely on robust cross-examination to test the veracity and competence of witnesses. During trial, prosecution and defense will put on witnesses that may well offer competing versions of events.

The common law competition between witnesses is probably most known for the “battle of the experts” where each side produces a competing professional analysis of a fact(s) at issue. Criticism of this process has grown in recent years with opponents noting that neither judges nor juries are particularly well positioned to evaluate conflicting technical/scientific analyses. Civil law systems avoid this situation through the use of court appointed experts. When technical issues arise, a civil law judge may consult a list of noted professionals in the area, choosing one for his or her established expertise on the topic.

This contrasting approach to witnesses affects the nature and significance of the trial record. Given the emphasis on witnesses and cross-examination, common law systems frequently have verbatim transcripts, which become part of the record. In civil law systems, a judge will often summarize each courtroom activity, including witness responses. The judge’s description is recorded by a court clerk and shared with the parties and the witness for their review. Their comments are noted, and this summary then becomes the trial record.

The absence of a verbatim transcript in the record may seem shocking at first to a common law practitioner, who could anticipate that its absence would jeopardize prospects for an effective appeal. However, the civil law practitioner’s case generally receives de novo review on appeal. So, the consequences of a mistake in the trial record, while not insubstantial, are not necessarily outcome determinative.

Though there are notable exceptions, the standard practice is to conduct a trial before a professional judge who is joined by lay assessors at the final argument. This reliance on the professional judge alters the very nature of the trial process itself. Adversarial presentations before a full court only occur at the end stage. In the preceding stages, a civil law trial is really a series of meetings as opposed to one central, extended court session before a jury. Consequently, while appeals impose additional expenses on the system, the civil law practice of de novo review on appeal does not generally risk undermining a jury verdict.

With its reliance on juries as the trier of fact, a common law system is driven by a concern for the common citizens called to serve and the attendant costs involved, and this consideration has promoted rules and practices that emphasize efficiency and finality in the trial fact-finding process. From a common law perspective, a de novo review appeal would imply that a new jury be empanelled. Failure to do so would call into question the right to jury trial and recast the process of adducing facts altogether.

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Using an Understanding of Common and Civil Law Distinctions
This cursory examination of some basic components of common and civil law practice identifies key considerations and concepts that underlie the respective systems. Though this discussion is very elementary, it demonstrates that even an elementary comparative analysis can provide important tools for understanding how and why component parts of a legal system function in a particular manner. For a more detailed discussion of these comparative considerations, see the prior work of the New-Rule Principal available here.  Armed with this knowledge, New-Rule experts will be better equipped to discuss and conclude meaningful programs that show respect for differences in approach, while simultaneously seeking to promote reforms that optimize their potential for lasting sustainable impact. 

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