In the first half of the 19th century, comparative law was very much en vogue in the United States. Two names are worth mentioning here: First (and foremost), Joseph Story, a Supreme Court judge and author of the Commentaries on the Constitution of the United States. Second, James Kent, Chancellor of New York and author of the Commentaries on American Law. Both gentlemen are known for their interest in continental European Law, French law in particular, which shaped their reasoning as well as their decisions and made them strong partisans in the American post bellum codification movement – the quest for an American code!
Other than in England, the consideration of comparative law in the United States was more comprehensive. The recourse to foreign laws was not just for practical (i.e. political) purposes, but represented the ideology of an illustrious group of lawyers with ties to the judiciary as well as legal academia. In fact, at that time, the curriculum of Harvard law school (where Joseph Story was faculty) included references to Roman and French law.
Such fascination for civil law by common law jurists is remarkable. It has to be seen in the context of the recent independence from England and the resulting urge to distinguish American law from British common law. Over time, however, these emancipation efforts ebbed away and the interest in comparative law ran dry.
- G Blaine Baker, Story’d Paradims for the Nineteenth-Century Display of Anglo-American Legal Doctrine (Angela Fernandez and Markus D. Dubber, eds. 2012) 82, 106.
- Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985).
- Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (1998), p. 57.
In my last post, I mentioned the role of the European Union (EU) as a vehicle to converge civil and common law. Today, I am going one step further by discussing whether the EU can be considered a mixed legal system. On the one hand, such a classification may seem evident. On the other hand, it is quite unusual to describe a transnational system as a mixed jurisdiction. So the question is whether the EU can be classified as a mixed legal system. If yes, EU law could draw inspiration and learn from the way things are handled in mixed jurisdictions.
Mixed jurisdictions traditionally combine common and civil law elements in an obvious way. Usually common law takes charge of public law, while civil law governs the private law side. While this definition is very simplistic and does not do right to the diversity among non-traditional mixed jurisdictions, it will serve the purposes of this post – determining whether the EU meets the standards of a mixed legal system.
So does the EU combine civil law and common law in an obvious way? According to a previous post, civil law is characterized by more generalized, codified laws, while common law distinguishes itself by rather specialized case law. Prima facie, the EU has a large body of treaties and regulations that may be seen as codes. Its law is also further shaped by case law by the European Court of Justice (ECJ). Thus, the EU merges civil law and common law elements. Decisions by the ECJ, however, resemble more interpretative decisions by civil law courts than creative rulings by common law courts.
Consequently, the EU does not fulfill this first criteria and can therefore not be considered a mixed jurisdiction in the traditional sense. Instead, the EU is a brainchild of civil law countries that was assigned to the few common law members. This situation is the exact opposite of the way mixed legal systems historically developed. In that regard, mixed jurisdictions may still help in resolving issues of reception of EU law in common law member countries.
- Valentine Vernon Palmer, Mixed Jurisdictions … and the Myth of Pure Laws, 67 LA L. REV. 1206-1218 (2007).
- Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 VANDERBILT TRANSNAT’L L. REV. 1083-1138 (2008).
- William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LA L. REV. 618-738 (2000).
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).