Are Civil Law and Common Law Families Converging?

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.

Bibliography

William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LOUISIANA L. REV. 618-738 (2000).

Are All Legal Systems “Mixed Legal Systems”?

Under the traditional definition of mixed legal systems, only a few countries would qualify. With the more recent discussion of legal traditions in comparative law and the application of legal pluralism, however, the concept of mixed legal systems may become too broad. If norms, such as cultures and traditions, are to be considered in the classification process, would not all legal systems be somehow “mixed”?

Laws Are Transferred

Most laws are influenced by others – that is the underlying theory behind the concept of legal families. Legal traditions emphasize this link between past and present, yet extend it even further to include ‘the content and flow of large bodies of normative information over time and over space’ (P. GLENN, infra). Seen this way, the term law covers not only positive law or state law, but also non-state law, like social norms.

Mixed Legal Systems – A Separate Legal Family?

The question is then whether mixed legal systems should be considered as a legal family, next to – or in between – the common law and the civil law families. Such a situation appears unsatisfactory for two reasons: First, there is evidence that the strict distinction between common law and civil law countries might become somewhat more flexible, especially in the European context. For example, civil law courts have to respect and take into account decisions by European courts, whereas common law countries have to incorporate European legislation. As a consequence, the categorization into common, civil and mixed legal systems gets less and less self evident. Second, the limitation of legal systems to three groups itself is problematic, as already discussed in a prior post. Such a reductionist approach ignores the great variability of legal systems within each of these three groups. It also completely leaves out indigenous and other non-Western systems.

Different Kinds of Mixed Legal Systems

So is there the category of mixed legal systems? Such a result seems questionable given the considerable variety among these blended legal systems. For example, Professor Örücü has distinguished between four different kinds of mixed legal systems:

(1) mixing bowl systems where distinct elements are integrated within similar legal institutions (e.g. Scotland);

(2) salad bowl systems where both legal elements and institutions are distinct (e.g. Algeria);

(3) salad plate systems where legal dualism or pluralism exists (e.g. Zimbabwe); and

(4) puree systems where legal traditions that form the basis for legal elements and institutions have become truly blended (e.g. Dutch law).

This fourth point, however, illustrates that the whole category of mixed legal systems rests on a slippery slope. When is a system considered a mixed legal system instead of a member of a legal family? Which and how many distinctive elements from different families must a legal system possess in order to be considered mixed? And, last but not least, which classification method is most suitable for taking into account the special quality of a legal system, if there is any?

Bibliography

  • Patrick Glenn, A Concept of Legal Tradition, 34 Queen’s L.J. 427, 431 (2008).
  • William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LOUISIANA L. REV. 618-738 (2000).
  • Esin Örücü, Mixed and Mixing Systems: A Conceptual Approach, in STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING 335, 344-345 (Örücü, Attwool & Coyle, eds., 1996) .

Legal Pluralism and Comparative Law

As I was reading up on comparative law and culture, I was wondering about the possible impact of legal pluralism on comparative law. Legal pluralism is a theory used by social scientists. Its basic idea is that several legal systems usually coexist and intermingle within one legal entity. Historically, legal pluralism can be traced back to the middle ages where there was a constant conflict between state law and church law. Another application for legal pluralism came with colonialism and the imposition of western law onto indigenous law. More recently, a movement called global legal pluralism has applied legal pluralism theory to legal issues that arise from globalization. Global legal pluralism might have an impact on comparative law in two areas: (1) the grouping of legal systems into legal families and (2) the definition of mixed legal systems.

In global legal pluralism, the definition of law is very broad and encompasses not only the classic law made by the government for its citizens, but any normative commitment. This means that also international law, non-state law and social norms are included under the definition of law. Here comes the connection to the law and culture movement which stipulates that legal systems should be considered in their entirety, i.e. including cultural norms and traditions. And this leads us to a relatively recent method for defining legal families: the focus on traditions instead of legal scope or theory. Comparative law used to only consider law made by a government authority. As a result, western legal systems were over represented, whereas indigenous systems that usually rely on social norms were mostly ignored. The application of legal pluralism to comparative law classification could change this picture and eventually place indigenous legal systems on an equal footing with the so far predominantly studied western legal systems.

Similarly, legal pluralism has an impact on how mixed legal systems are defined. Traditionally, in comparative law, only legal systems that combined elements of both common and civil law were considered a mixed legal system. With the above-mentioned broader definition of law, any heterogeneous legal system that includes elements of other legal traditions would fall under the category of mixed legal systems. Given that various streams of legal thought and tradition usually make up a legal system, any legal system could then be considered a mixed legal system. Such a conclusion would render the whole category of mixed legal systems moot.

It remains to be seen whether and how exactly global legal pluralism will find its way into comparative law. The above discussion illustrates that a blind adaptation of pluralist principles by comparative lawyers does not make sense and therefore should be avoided. In general, however, global legal pluralism may be the key that brings comparative law out of its existential crisis by opening up new ways to examine and incorporate novel aspects of law that have become important over the years as the legal horizon has broadened.

Bibliography

  • Paul Schiff Berman, Global Legal Pluralsim, 80 SO CAL L REV. 1155 (2007).
  • PAUL SCHIFF BERMAN, GLOBAL LEGAL PLURALISM: A JURISPRUDENCE OF LAW BEYOND BORDERS (2012).
  • Ralf Michaels, Global Legal Pluralism, 5 ANNUAL REV. OF L & SOC SCIENCES 243 (2009).
  • Brian Z. Tamanaha, Understanding Legal Pluralism: Past to Present, Local to Global, 30 SYDNEY L. REV. 365 (2008).