Civil Law v. Common Law, 001 Civ. 2d. 23 (2007).

[QuoVadisNation]

Let's hear it. Which legal system do you think is better, and why? For the past two years I've been hearing nothing but my law professors saying about how common law will always be better than the European model. Frankly, I'm inclined to agree. But then again, what do I know? What does civil law have that I don't know about?

 

[PrinceOfLeigh]

There isn't a huge difference. On first glance adhering to a 'Code' rather than Case precedent would appear to restrict the development of law. This isn't necessarily true. The Codes, especially France's 'Code Civil and Pénal' are drafted in such a way to allow Judges a broad interpretation.

It's fair to say that the Code Napoléon is a fine piece of legislative drafting.

I prefer the Common Law for the simple reason that whilst the Codified system can give a broad overview as to what should occur in a certain situation, Case Law Precedent can be much more specific.

 

[Fifty]

I prefer Martial.

 

[Winner]

European (civil) law. I strongly dislike the way law works in anglo-saxon countries. It seems to be disorganized, chaotic, unfair and often absurd.

 

[Steph]

Civil law. Why? Because it comes from France, so it cannot be something else than the best.

 

[El_Machinae]

I like common law because it's predictable (by someone versed in it) and can be automated. With a proper database, you can type the specifics of your case in and quickly generate a probable outcome. This can save a great deal of hassle in time; parties will compromise more easily if they know what the 'law' will make of their case.

 

[HypnosTene]

Civil law. Why? Because it comes from France, so it cannot be something else than the best.

This post alone was enough to make me want to vote for Common Law
Instead, I'll point to the fact that civil law comes from Roman law, in its institutions as well as the damn name.

Abstracting from that, however, I will vote for Civil Law. I like how it uses a set of general rules and expands logically from there. I find Common law rather chaotic and silly in comparison.

 

[Steph]

I like common law because it's predictable (by someone versed in it) and can be automated. With a proper database, you can type the specifics of your case in and quickly generate a probable outcome. This can save a great deal of hassle in time; parties will compromise more easily if they know what the 'law' will make of their case.

Because civil law is not predictable??

 

[El_Machinae]

Because civil law is not predictable??

As much as the law allows, absolutely. But how does civil law become more clear over time? Legislation is usually too vague, and a system of precedents allows it to become more specific and predicatable.

 

[Steph]

As much as the law allows, absolutely. But how does civil law become more clear over time? Legislation is usually too vague, and a system of precedents allows it to become more specific and predicatable.

I do hope the guys we pay at the parliament to make new laws update the legislation when needed.

 

[El_Machinae]

My experience is that they're too busy making new laws to put simple words and comments into old legislation. They only occassionally update old laws, but that's with opportunity cost. As well, sometimes judges will give the legislators time to change a law before they rule against it.

Maybe you guys are more efficient at passing laws, where older laws can be clarified in subtle ways. I'll believe you if you say it, but I'm a bit resistant to the idea.

 

[Brighteye]

How is civil law less chaotic, unfair or absurd than common law?
Common law specifies a crime and a punishment. That seems to be the epitome of an organised system, quite unlike a set of general principles which go along with the instruction 'decide for yourself if something agrees with these'.

Roman law is just the lazy way out of lawmaking. Rather than put the necessary effort in at the beginning in order to make a coherent and reliable system, Roman law simply relies on people to do it as they go along: a sensible way of doing things for primitive societies, or small groups of people, but not for modern countries.

 

[Steph]

Strange, but when reading you it seems you mixed the two systems

 

[PrinceOfLeigh]

Why are we arguing over this? There is remarkably little difference between the two systems. One Judge looks at previous rulings, one looks at the Codes.

It's not hugely different.

 

[Fugitive Sisyphus]

I prefer civil law in theory. I don't like the idea of "this is how it's done because this is always how it has been done" but instead want "this is how it's done because the law says so." If you think it is unfair, change the law.

In reality any civil law is going to have strong common law elements and vise-versa.

 

[Brighteye]

Perhaps someone who knows should define the two more accurately. I wonder if my perception is a little off.

I thought that common law consisted of laws that forbid actions, whereas Roman law specifies a general goal and leaves it to interpretation whether an action works against that goal or not.

So from this view, Roman law is a set of principles or a constitution, whereas common law is a set of laws. No doubt common law will be enacted with a set of goals in mind, just as Roman law will quickly develop numerous accepted interpretations.

Nonetheless, common law provides certainty and freedom that Roman law naturally works against. There is more freedom in a proscriptive set of laws than a presciptive set, and more certainty where less is open to interpretation.

 

[El_Machinae]

Common law, too, can be changed by actions from Parliament.

 

[Steph]

Simple overview:

Common law, often referred to as "judge-made-law", requires judges to use their discretion in making judgments. It is used when no appropriate statute law exists. A judges' decision may set a precedent, which must then be followed by all lower courts when the facts of the case are similar

In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general rules and principles of the code, often drawing analogies from statutory provisions to fill lacunae and to achieve coherence. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.


The main difference that is usually drawn between the two systems is that common law draws abstract rules from specific cases, whereas civil law starts out with abstract rules, which judges must then apply to the various cases before them.

An example:
- You steal a loaf of bread.
Civil law: The set of rules say stealing is against the law, and propose "standard sanctions". The judge use this to rule you can't steal of loaf of bread, and use the standard sanctions as a base to decide the penalty you will get in this particular case.

Common law: Some years ago, someone stole an egg. Stealing a loaf of bread is simular to stealing an egg. The judge uses the precedent ruling about the theft of the egg to decide what shall be done for bread.

 

[Masquerouge]

Civil law. Why? Because it comes from France, so it cannot be something else than the best.

I fully agree.

/sings La Marseillaise.

 

[Brighteye]

So, according to Steph's definition, I'm in favour of civil law, since he's pretty much reversed the way I perceived it.