Comparative Law – Continental Law Prof. Giorgio F. COLOMBO

Main Features of the Civil Law Systems Lesson n.6

Common Law ≠ Civil Law? The partition is not sharp There is no example of a «pure» Civil Law or Common Law jurisdiction Every legal system is «mixed» to some extent «Mixed legal systems» are something else, tho Convergence of models Importance of statutes in Common Law Importance of precedents in Civil Law

Common Law ≠ Civil Law? Civil Law and Common Law traditions Also: framing traditions in practical terms (CISG) Misconceptions and stereotypes

Civil Law A written Constitution (and often a Constitutional Court) It does not mean that Common Law systems do not have a Constitution «Uncodified Constitution» The control over the respect of the Constitution is generally centralized

Civil Law A codified legal system Common law jurisdictions are also full of codes The practical and philosophical role of the Codes, however, is completely different Pretension of comprehensiveness Creation vs. Restatement

Civil Law Statutes are the main source of law Again, in Common Law jurisdictions there are plenty of statutes However, the main source of law in Common Law jurisdictions is the activity of judges

Civil Law Court decisions are not formally binding «Formally» binding However, extremely important. Why? Authority Hierarchy (e.g. Japan) Other reasons (e.g. China) Exceptions: Constitutional Court, etc.

Civil Law Public law vs. Private Law The relationship between the State and the citiziens is different than that between private individuals Matters of public law are dealt with in administrative courts

Civil Law Litigation is inquisitorial In Common Law is mainly adversarial Judge as an actor vs. Judge as a referee Influence of Canon Law Acquiring evidence, summoning parties, etc.

Civil Law Role of the judge «La bouche de la loi» Not supposed to be creative/look for solutions Active role in managing the litigation Elected judges basically do not exist

Civil Law Legal education is different Law as undergraduate Law degrees Training after graudation before qualification Vast knowledge of law vs. versatile knowledge of many subjects

Civil Law Lawyers and judges follow separated careers Judges are public officers trained separately from lawyers. Their career is normally entirely in the judiciary (exceptions: Supreme Courts; summary courts) The paths may diverge immediately (France, Italy) or after acquiring a qualification (Germany, Japan)

Civil Law Scholars are extremely influential «The civil law is a law of the professors» (Merryman) Ancient tradition Conflict with the legislators/fictions

Civil Law Ordinary citizens are only marginally involved in the administration of justice The Jury in civil litigation is basically absent In criminal procedure is a support to the judge, but it is a mixed jury where professional judges have a leading role

Civil Law Access to upper jurisdictions is easier Appellate courts review also issues of fact Supreme courts (Cassation) only review the law Not really a third instance but a decision on lower judgements – no «decision»

Civil Law Many other features Litigation mainly documental: exchange of briefs rather than dynamic hearings No division between law and Equity There is no idea of discovery Wide abstract notions: juristic act, good faith, etc. Damages are mostly restitutory in nature