Last week, I discussed whether all legal systems are mixed. Today, I am taking this thought a little bit further by examining whether there is a de facto convergence of civil law and common law families. In a world where people are coming together through travel, trade and internet, would it not be normal for legal systems to merge as well? Is not the consequence of international relations and treaties, that laws assimilate? Is the classical divide between civil law and common law becoming less and less pronounced? In order to be able to answer these questions, let us first look at the basic characteristics of common and civil law and then examine how they have changed in recent years and whether these changes suggest a convergence.
What Characterizes Civil Law and Common Law?
The civil law tradition goes back to the Corpus Iuris Civilis, a codification of Roman law. Civil law is mainly based on codes that are then interpreted by courts in individual cases. A main characteristic of these codes is that the rules are formulated in a very broad, general way and need to be applied in a strict, logical way.
Common law evolved in England from the 11th century onward. Its basis are court decisions of individual cases from which more general rules are drawn. These rules are usually much more specific and fact-driven than the ones in civil codes.
So Is There a Convergence?
Proponents of a merger of civil and common law point towards international legal communities and suggest that both legal systems have to come together in order for such meta-systems to work. The European Union (EU) might serve to illustrate this point. Thus, one could say that the EU issues written laws and has courts that make binding decisions. Yet, the EU statutes do not share the typical attributes of civil codes. And the way binding EU court decisions are handled by civil law courts falls short of the usual handling of precedents by common law courts. So while common law lawyers may increasingly have to deal with civil law issues and vice versa, the two systems are too fundamentally different in order to completely merge.
William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LOUISIANA L. REV. 618-738 (2000).