Compare common law /civil law Characteristics Jurist vs. judge National identity Dichotomies Public law vs. private law Civil law vs. commercial law Appraisal of civil law

What does “civil” mean? Civil practice Civil procedure Civil law Civilian court

Pope Gregory Receiving Canon Law (Stanza della Segnatura)

Compare common law /civil law Process of national unification Common law: Civil law: Check on judicial arbitrariness Common law: Civil law: Unification actors Common law: Civil law:

Compare common law /civil law Process of national unification Common law: unifying force in England (1066) Civil law: codes (citizens’) on Continent (1804) Check on judicial arbitrariness Common law: jury, stare decisis Civil law: written legislative law / ancien regime Unification actors Common law: bench and bar Civil law: university-taught writers / professors

Hugo Grotius ( ) Dutch legal scholar, playwright, poet natural law philosopher "social contract" theory of State seas free for mutual benefit of all Father of “international law” "property" from social consent nothing "inalienable” about it

Lord Mansfield ( ) Chief Justice of England King’s scholar - Oxford (1726) called to bar, notoriety (1730) House of Commons (moderate) chief justice king’s bench (1756) six reversals in 32-year career founder of commercial law (nearly all principles)

Compare common law /civil law Civil law Roman-influenced University-taught, professor-inspired Formed across continent (ius commune / Latin) Distrust of judicial power Dichotomies Public law vs. private law Civil law vs. commercial law Common law Local customs (some Roman) Judicial / bar Centralized government (royal courts) Respect for judges Dichotomies No public law in England Common law adapts to changing economy

What is public law? (in civil law tradition) Roman law (Ulpian): quod ad statum rei Romanae spectat (that which refers to the condition of the Roman state) Ad singulorum utilitatem (private interests of individual) – focus of Justinian Digest, Institutes Expanded as jurists move throughout Europe legislation, public officials, procedure, tax, public duties Become dependent on sovereign National constitutional law / administrative law Constitutional republics Social legislation and specialized courts

Public law in England Public authorities subject to common law jurisdiction Habeas corpus, mandamus Tort actions against public figures Review of administrative acts No Constitution Omnipotence of Parliament Separation of powers: no judicial review

Compare common law /civil law What does Venice have to do with the common law of England? Who wrote the “Merchant of Venice”?

What is commercial law? Roman law unsuitable for commercial disputes Limits on freedom of contract, acting through agents Protection of debtors / usury rules Slow procedure Medieval customary law (law merchant) Developed by guilds and corporations “traveled” with merchant (choice of law) Guild (later merchants) elect own judges Procedure: like arbitration

National commercial law Civil law rules based on law merchant Freedom of contract, alienability Ex aequo et bono: According to what is right and good. Separate commercial code / courts (public choice) English common law Absorbs law merchant in 17 th and 18 th Centuries Negotiable instruments Inductive, practical, non-scholastic

Lex Mundi Project Law firms from 109 countries responded to questionnaires – Describe claims (eviction and check collection) Characteristics of parties and merit of positions Not reading of laws / actual practice

Lex Mundi Project Do common law or civil law courts enforce contracts more efficiently? Landlord evicts non-paying tenant Creditor collects bounced check Enlightenment idea: court access to ordinary citizens Measure deviation from simple neighbor model Formalism  --  Quality of justice Quality of justice  --  Legal system

Lex Mundi Project Measure formalism Access: need for lawyers, formalities to bring Ease: oral vs. written procedures Legalism: need for justifications Information: regulation of evidence Superior review Count # procedural steps Measure quality of judicial system Duration of proceeding Fairness, consistency, honesty (survey small firms) Identify types of courts (transplanted legal systems)

Lex Mundi Project Findings (formalism): 1. Legal origins explains 40% of formalism 2. Formalism prevalent in civil law countries 3. Formalism greater in less developed vs. richer countries Findings (quality – per capita income constant): 1. Formalism predicts duration of eviction, check collection 2. Formalism correlated to less access, higher judicial inefficiency, higher corruption, less fairness

Lex Mundi Project “Consistent with the literature on comparative law, we find that judicial formalism is systematically greater in civil law countries, and especially French civil law countries, than in common law countries.” “Formalism is nearly universally associated with lower survey measures of the quality of legal system, including judicial efficiency, access to justice, honesty, consistency, impartiality, fairness, and even human rights.”