Common Law - Civil Law: The Great Divide?

This book provides an in-depth analysis of the differences between common law and civil law systems, exploring their historical roots, sources of law, and the role of judges and precedent. It argues that international and supranational legal systems have leveled the playing field, and that a normative understanding of constitutions grants greater authority to High Court decisions in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for a structural reassessment of the role of judges, the power of precedent, and the limits of legislation.

Format: Paperback / softback
Length: 191 pages
Publication date: 22 December 2022
Publisher: Springer Nature Switzerland AG

This comprehensive book delves into a detailed examination of the distinctions between common law and civil law systems, drawing from a wide range of theoretical perspectives. Written by a global network of experts, it explores the topic against the backdrop of various legal traditions, providing a comprehensive understanding of these two legal systems.

Common law and civil law are often portrayed as opposing forces within the realm of diverse legal systems. The former is based on precedent set by judges in deciding cases before them, while the latter is founded on a set of rules intended to govern the decisions of those applying them. This dichotomy gives rise to several key differences between the two systems.

Firstly, the primary source(s) of law differs between common law and civil law. In common law systems, the law is derived from a combination of judicial decisions, statutes, and legal customs. Judges play a central role in shaping the law through their interpretation and application of precedent. On the other hand, civil law systems are typically based on a written code, such as a constitution or civil code, which is enacted by the legislature and provides a comprehensive set of rules. The creation and interpretation of civil law are more centralized and less dependent on individual judges.

Secondly, the role of those who create and draw from the law differs significantly between common law and civil law. In common law systems, judges are responsible for creating the law through their decisions. They rely on precedent to guide their interpretation and decision-making, which means that the law evolves over time through a process of incremental development. In civil law systems, the law is created by the legislature and is more static in nature. The legislature is responsible for drafting the code and defining the legal principles that govern the decisions of those applying the law.

Thirdly, the nature of the law itself differs between common law and civil law. In common law systems, the law is considered "pure" in the sense that it is not subject to arbitrary changes by the legislature or other authorities. The law is based on precedent and is intended to be consistent and predictable. In civil law systems, the law is more flexible and adaptable to changing circumstances. The code is designed to provide a comprehensive set of rules that can be applied to a wide range of situations, and the legislature has the authority

The historical roots of these differences are deep and multifaceted, dating back to distinct legal traditions. However, it is important to note that the divide between common law and civil law is not as stark as it may initially appear. International and supranational legal systems, which are often unconcerned with national peculiarities, appear to level the playing field. Normative understandings of constitutions in countries that adhere to the civil law tradition grant ever-greater authority to High Court decisions based on thinly worded maxims, which can have significant implications for the interpretation and application of the law.

In contrast, the challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in common law systems. The need for clear and concise legislation is particularly important in the context of rapidly evolving technologies and complex social issues. This demand for statutory regulation highlights the need for a structural reassessment of the role of judges, the power of precedent, the limits of legislation, and other features often thought to be so different in common and civil law systems.

The book addresses this reassessment by exploring the theoretical and practical implications of these differences. It provides a comprehensive analysis of the historical, cultural, and social factors that have shaped the development of common law and civil law systems, and it examines the ways in which these systems have responded to the challenges of contemporary regulation. The book also offers insights into the potential benefits and drawbacks of each system, and it proposes strategies for reconciling the differences between the two in order to create a more effective and efficient regulatory framework.

In conclusion, this book offers a valuable contribution to the study of law and regulation. It provides a comprehensive analysis of the distinctions between common law and civil law systems, drawing from a wide range of theoretical perspectives. Written by a global network of experts, it explores the topic against the backdrop of various legal traditions, providing a comprehensive understanding of these two legal systems. The book addresses the challenges contemporary regulation faces and proposes strategies for reconciling the differences between the two in order to create a more effective and efficient regulatory framework.

Weight: 320g
Dimension: 235 x 155 (mm)
ISBN-13: 9783030877200
Edition number: 1st ed. 2022