LAW: Civil vs. Common Law Systems (Was: crime in big cities and Europe)

Date: Sat Jun 24 2000 - 14:56:56 MDT

In a message dated 6/21/00 6:06:51 PM Central Daylight Time, writes:

> > > It might seem
> > > arrogant, but our system of laws is by far superior to that of
> > the UK or
> > the
> > > US. We have ended the era of court law about five hundred
> > years ago when
> > > Emperor Karl V compiled a code of laws for the Holy Roman Empire.
> >
> > Karsten:
> >
> > I hope I'll have the time to discuss this at more length with you soon.
> > Suffice it to say that I don't agree with you. I've had fairly extensive
> > experience with civil code legal systems, and obviously quite a
> > bit in the
> > Anglo-American system of common law. Generally, I find the civil
> > code system
> > less flexible and much less amenable to a general atmosphere of rapid
> > innovation than the common law system.
> Well, that might seem this way at first, but I have great problems with the
> anglo-saxon system of common law. I will never get used to explaining in
> each contract each little bit of right I wish to cease or get. And besides
> that the codes of law are abstract in a way that allows for them to be used
> in any relationship. Besides that the German law knows the common law or
> court law. It has been applied in certain cases and some of them have
> prevailed until today and are part of the legal system by now.
> It would be interesting for me to know where you had your experience with
> civel code legal systems, as there are great differences between the
> European law systems, though this tends to diminish due to the European
> Community's Civil Code of Laws.

My experience has mainly been with Mexico. I've had a number of cases that
have had strong connections to Mexico. I've been fortunate to work with some
very prominent legal practitioners and scholars in Mexico and to have had the
opportunity to work on one very large case (that worked its way through the
US appeals courts twice and, ultimately to the US Supreme Court) involving
deep comparative law issues between the US and Mexican system on both a
private and state-to-state basis. Because of some of the arcane issues in
that case, Mexican counsel on both sides were required to look to European
civil law sources and commentators on a number of occasions and comparative
juridical methodology became central to decision of the case. A couple of
years ago I worked on a case that had some connection with Dutch law and
practice and worked with some attorneys in Amsterdam a bit. Oh, and of
course, living in Texas, I practice next to the only state in the union that
continues its theoretical adherence to code methodology, Louisiana (although
the reality has become a pretty humorous complete translation of the code
process into common law practice). On the other side of the great divide in
Western legal systems, my practice has been closely tied to the London bar
for years, and I've had occasion to work with solicitors and barristers in
many cases. With that background I feel as competent as any non-academic
practitioner to make observations about the two systems.

As you correctly point out, neither system is "pure", in the sense that
modern code jurisdictions have all adopted some decisional matrix around
their statutory core, and all of the common law systems have recognized the
value of codifications, both in works like the Restatements and also in
positive law, such as in the UCC. However, the life and practice of the law
remains very, very different in the two worlds of western law, as my
colleagues in England are discovering to their great pain as they attempt to
accommodate EU practices.

With that preamble, and without meaning to be combative, I would have to
summarize my critique of the code systems as being premised on a conceit of
control that is inconsistent with the kind of flexibility that has suited the
Anglo-American world so well in the age of innovation. The notion that a
legislature can define a complete set of rules by which people should be
governed is inimical to change and experimentation. I know that all the code
systems have "meta-rules" that attempt to address this problem, and the
adoption of decisional jurisprudential rule-making as an adjunct to the
central body of codified positive law has significantly ameliorated this
problem. But the core notion that a set "operating system" for society can
be determined on a fine-grained level lies at the foundation of many of the
evils free people have encountered since the West has come to embrace the
notion of the rule of law.

The ad-hoc and highly contextual nature of the common law grows out of a very
different premise about the governance of society than the one that underlies
the code system. Yes, code practitioners find it frustrating that we define
rights and obligations so specifically in our contracts. But that's the
price we pay for the extreme flexibility of our legal system. Code lawyers
shrink back in horror at the miles of bookshelves in a well-stocked common
law library, and the complex system of indices required to make any sense of
that great mass of mumbling judges. But in that complexity we find
fertility, like a rich ecosystem. To continue the metaphor, the code system
looks to me like a dangerously narrow monoculture, exposed to the risk of
destruction from every new pathogen or foreign creature that might wander
into its territory. The rich confusion of the common law contains a great
reservoir of social DNA from which new solutions can be crafted on the fly,
while the whole system can maintain equilibrium.

Of course, taking Jefferson's metaphor of federalism as "the laboratories of
democracy", the great comparative law exercise we're all living in in the
West will ultimately yield some answers. The Anglo-American world has gone
down one road, and the rest of the world has gone down another. History will
eventually offer up some results.

       Greg Burch <>----<>
      Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide -or-
                                           ICQ # 61112550
        "We never stop investigating. We are never satisfied that we know
        enough to get by. Every question we answer leads on to another
       question. This has become the greatest survival trick of our species."
                                          -- Desmond Morris

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