First post...Excerpt from Comparative Analysis of Law Development in Civil Law Systems (1 of 4)

Shortly after I began the research for this paper, I was sitting in the National Botanical Garden in Washington, DC. There is a small courtyard in the complex dedicated to plants of the United States, with a small rock garden and pool in the middle. Next to the pool sat a solitary male duck, keeping watch over the single egg a few feet away on the other side of the pool. A family walked by the bench I was sitting on, and a young child asked his mother why the duck was standing up and not swimming. The mother’s answer was simple, but provided an interesting starting point for discussing the main difference in judicial roles in common law and civil law jurisdictions. She merely stated, “he decided not to.” It may be overly simplistic to divide civil law and common law jurisdictions into two neat pots. After all, France, Brazil, Egypt, China, Turkey, and Louisiana in the United States are at least primarily civil law jurisdictions, while countries as diverse as India, Australia, Guyana, Canada, England and the United States are all considered common law jurisdictions. However, at their root, common law jurisdictions can be said to be those where the statutes and regulations of the jurisdiction are supplemented by judicial decisions to form the complete body of law. These decisions are sometimes binding based on a hierarchy of courts, and even when not are often referenced and thoughtfully considered by other judges. Meanwhile, a defining characteristic of the civil law is that the statutes stand alone as the law, and that judges exist only as civil servants whose function is to apply the law as it is written in their jurisdiction’s code. Therefore, argue proponents of the civil law, their system is more consistent, fairer, and more just. Others argue that some of these views are somewhat romanticized and simplified. However, such simplification assists in comparative analysis because if judges in civil law countries exist simply to apply law, and not to make it, then one needs to look no further than the statutes of a jurisdiction to determine what the remedy will be in any given case. Furthermore, the analysis of the efficiency of law development in civil law jurisdictions can be summarized as an analysis of the efficiency of the remedies in civil law statutes. This paper is first a summary of the methodological development of law in civil law jurisdictions. Comparisons will also be made to the main alternative, development of law in common law jurisdiction. Additionally, practical implications of how law is developed in civil law jurisdictions are discussed, with the main emphasis resting upon whether opportunities for more “efficient” resolution of disputes could occur if civil law functioned differently. To determine whether this is the case, the remedies available to both civil and common law judges in contract breach cases will be analyzed using the tools of law and economics. One preliminary comment is that this paper in no way attempts to make value judgments on the merits of different legal systems or critique the results each may come to. It is merely an attempt to describe the development of civil law, and analyze the resulting implications utilizing the framework of law and economics. This is, in and of itself somewhat difficult because law and economics was developed in the United States, a common law jurisdiction. It has different societal norms than civil law jurisdictions, and indeed other common law jurisdictions. Therefore, certain promises could be valued differently in various jurisdictions, ideas of fairness can vary significantly, and societal views of different outcomes in court cases can be wildly divergent. As a result, some inevitable discussion of moral questions occurs throughout. The Historical Development of the Civil Law System Common law, the younger of the two main legal systems, was developed by the English around the time of the Norman Conquest in 1066. It is a tradition built around the interpretation of statutes written by legislators by judges. How laws are interpreted depends on the very particular circumstances of the case and may be impacted by considerations such as fairness. This system was then exported to England’s colonies, explaining its prominence in jurisdictions such as Canada, Australia, the United States, and certain parts of Asia and the Caribbean. John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition, An Introduction to the Legal Systems of Europe and Latin America 1-3 (Stanford University Press, 3rd ed. 2007). The common law is a system where statutes, judicial decisions, and customs are all given weight. Because of this, critics of the common law and proponents of the civil law often claim that there is uncertainty to common law, and that the system itself is less elegant than the civil law with its statutory certainty. Merryman, supra at 3. However, it also lends itself to more creative, and, in some cases more efficient, results. By comparison, the roots of the civil law reach much deeper, with the seeds of its development planted in 450 B.C. It was around this time that the Twelve Tablets were published in Rome. Since then, the system has gained widespread acceptance throughout Continental Europe, parts of Asia, Africa, North America, and particularly in Latin America. Merryman, supra at 1-3. The Roman emperor Justinian was the first great codifier of laws. It was Justinian who assimilated and validated the ideas of many previous thinkers, scholars and commentators in the Corpus Juris Civilis. Combined with the existing jus commune, or customary and judge-made law, in Western Europe at the time, this eventually formed the basis for what is known contemporarily as civil law. Merryman, supra at 7, 10. On this foundation was built a system that absorbed aspects of canonical law, or the law of the Roman Catholic Church, and combined it with other customs as well as merchant law. This ancient law had developed, particularly around the Mediterranean, by merchants to self-police commercial transactions. Merryman, supra at 13. These sources; the codes of Rome, the canonical law and the merchant law, combined to form the basis of what is described as private law, or the laws governing interactions between individuals, in the civil law today. The combination of canonical law with merchant law and customary law was further influenced during revolutionary times in Europe with ideas borrowed from the natural law tradition, and underwent further codification. For example, two major codes, the Code Napoleon of 1804, and the German Civil Code of 1894 developed in this way. Merryman, supra at 32. However, it is notable that codification was not always meant to serve the same ends. For example, in France, it presented an opportunity to develop a whole new system, while in Germany, it was simply a formalization of existing laws, and was not revolutionary in nature. Nonetheless, contemporary codes throughout the civil law system were given much of their structural framework during the 18th and 19th centuries as the concept of natural law stoked revolutionary fires in Western Europe, particularly France. Natural Law, described by commentators such as Aquinas, Grotius, Pufendorf, Hobbes and Locke as the concept that man has unalienable rights bestowed upon him by God, was liberally cited by revolutionaries developing the European legal codes. The inconsistency of this notion with aristocratic and feudal societies is obvious. The implications for the judiciary were less obvious to a contemporary reader, but the impact was as great. During the time, judges were aristocrats in their own right, and there was widespread dissatisfaction over how decisions were made, how judgeships could be passed on like an inheritance, and the lack of ability to question unfavorable or even unfair opinions. The idea of man having inherent rights was inconsistent with aristocratic judges as it was with aristocratic rulers, and therefore the framers of European legal systems favored a strong separation of powers with a weak judiciary. See generally, A.P. d’Entreves, Natural Law, An Introduction to Legal Philosophy (Hutchinson & Co. Ltd. 1970). This is still apparent in the civil law of today, with the emphasis of judges as civil servants with limited ability to impact a trial through decision-making. A more recent change to the traditional structure of civil law systems has been the addition of an overriding constitutional umbrella, which is discussed below. In summary, the roots of civil law were developed out of a desire to codify laws from different sources in ancient times. This basic desire was made possible by combining existing laws and traditions with the ideas of commentators and scholars. This has been structurally impacted by ideas borrowed from natural law during revolutionary times, resulting in a system where judges may only interpret laws as developed by legislatures. Every jurisdiction that is considered to be a civil law country is different; however a common link between them is that they have codes, and that those codes serve as the law which judges apply to cases that come before them. Parts 2-4 will appear weekly