ETH, STP

PIPP: Legal Families

The major legal families are civil law and common law. This is a short overview that ignores several details for a coherent view.

Civil Law

Civil Law is prevalent in Continental Europe. Central features are

  • codification,
  • parliaments make the law,
  • judges interpret the law
  • central figures (i.e scholars who argues doctrinally and creates abstract principles from which he derives the outcome of a  case),
  • subdivision of courts.

It has its historic roots in Roman Law. Within the civil law tradition there are some differences. The French legal system is a major influence in modern civil law, especially the Code Civil from 1804. The style of court decisions consists usually of one single sentence (several pages long), facts of the case are very short, very brief and terse (no obiter dicta, no citations, no doubts), and the personality of the individual judge plays no role. The Germanic legal family has influences beyond its geographic area (in Greece, Turkey, Japan and South Korea). It is marked by a scholarly discourse at German universities.

Judges usually rule within the strict definition of the law and defer to the parliament if they believe that a law should have been different.

Common Law

It is prevalent in the Anglo-Saxon World and the Commonwealth countries. It central features are

  • Judge-made law,
  • Case-based reasoning,
  • Central figures are judges who reasoning from case to case, fact-based, distinguishing cases and they developing the case law further,
  • Binding precedents “stare decisis” doctrine (only the “same” cases are bound, so distinguishing allows you to decide differently)
  • Uniform court system, jury system, compilations of court decisions

It is barely influenced by Roman law, but many parallel developments have taken place.

A consequence of the judge-centring is that judges also consider policy relevance of their judgements.

Convergence

In Common Law countries the importance of judge-made laws decreases over time and becomes more similar to Civil Law countries (i.e. the US parliament creates more laws).  The stare decisis doctrine has become more flexible. On the other hand, in Civil Law countries some areas become more case-based. For instance, Tort law in Continental Europe is very case-based as the parliamentary law provided is to abstract to be directly applied.

Concepts of legal rules

Legal rules do not only prescribe behaviour, they also

  • enable behaviour,
  • create institutions,
  • create rights,
  • describe procedures.

Legal subject are either natural persons or legal persons (corporations, government institutions, universities). This has impacts on criminal liability, who benefits from fundamental rights or who can enter into a contract and who is liable in tort law. For instance, a legal person cannot be jailed, but it can be fined.

An important distinction is between privity of contract (inter partes) – i.e. contracts and torts – and right against all the world (erga omnes) – i.e. property and intellectual property law. The second kind of law allows to lay claims against other parties without having any contract with said party.

Some notes:

Stare decisis was invented by 13th century UK courts and after being uphold for centuries courts started to deviate and “overrule” some older rulings, especially if they believed themselves to be more “authoritative”.

Looking for the “right” decision in law is the wrong perspective. Law is more about resolving conflicts and enforcing them. Therefore, it is always a delicate balance between resolving conflicts and democratic values uphold by the sovereign.

Some definitions:

A EU directive is a rule that member states have to implement it as a regulation. It does not bind EU citizens, but there must be a national regulation that enforces the directive. The regulation then is binding. If a directive is not implemented, the European Court of Justice (ECJ) awards damages (usually on a daily basis, which quickly accumulates to a substantial sum) against the member state. A EU regulation is directly binding to citizens and it must not be implemented by member states. The EU directives are created in areas where the subsidiarity principle should hold. The EU regulations are created to harmonise between the member states. The ECJ is also in charge of interpretation of EU directives that then can be used in national courts to interpret national law.

Standard

This site uses Akismet to reduce spam. Learn how your comment data is processed.