Unit 1 Legal Systems

Because the United States is federation, Americans are usually well aware that the law may vary from jurisdiction to jurisdiction. Politically, it is certainly true to say that each independent jurisdiction has its own independent legal system. However, in terms of legal traditions and legal methods, most of the world's legal systems belong to one of a few legal traditions. In the Western World, and in parts of the world that have been colonized or strongly influenced by the West, there are two main legal traditions or legal families—the civil law and the common law. The U.S. legal system belongs to the common law tradition（Louisiana excepted）.

This note will introduce you to the origins and development of the common law and the civil law and to the main distinctions between these two systems, especially in terms of legal methods.

1. Origins of the two legal traditions and their diffusion around the world

The Common Law

The common law tradition originated in England. A new legal order was established as early as 1066 by the Norman conquest, but the common law did not exist in 1066. William the Conqueror did not abolish the local customs and the local courts. Local courts continued to apply local customs. There was no law common to the whole kingdom. The King did however establish some royal courts at Westminster. Their jurisdiction was at first very limited but eventually expanded to the point where the local courts fell into disuse. The decisions of the royal courts became the law common to the whole kingdom, the common law.

The common law has its source in previous court decisions. The main traditional source of the common law is therefore not legislation but cases. This is so true that when the common law evolved into an unfair set of rigid and formal procedural rules, the King, rather than legislate to amend the law, created a new court. When a subject thought that a common law decision led to an unfair result he（and at the time usually not she）would petition the King. There were so many petitions that the King created the court of Chancery which could grant a discretionary relief“in equity”to correct the common law. The decisions of this court gave birth to a body of law called equity which is also based on previous judicial decisions. Both law and equity are part of what is called the common law tradition.

The British Empire brought the common law to all continents. The common law was“received”in many countries, but its reception has been most successful in countries where the European settlers became a majority and imposed their law over indigenous populations. This is the case in Australia, English Canada, New Zealand and the United States（except Louisiana where the civil law was in place before the United States gained jurisdiction. ）The common law was also imposed on many other colonies but usually with some adaption to take into account the local customs. In some cases, the United States imposed parts of the common law on newly entrusted territories（e. g. , the Philippines）. Still today in Africa and Asia, former British colonies continue to apply the common law. Today, India is the most populous common law country.

Following the Second World War, the economic hegemony of the United States also contributed to the expansion of the common law.Contracts were drafted in common law terms and international arbitrators often applied common law principles.

A note about the common law in the United States. Because of the early independence of the United States, the common law here has evolved separately from the common law of England and of other Commonwealth countries. Commonwealth nations became independent only fairly recently, and even long after they were independent, some nations continued to allow appeals to the Judicial Committee of the Privy Council in London（some countries still allow such appeals）. This has had a unifying effect on the law of these countries and still today the courts of one country will consider the decisions of the courts of another Commonwealth country as very persuasive. By contrast, only rarely, if ever, does a United States court determining a matter of domestic law invoke a decision of a foreign country's courts. It is therefore even more striking that notwithstanding years of“legal separation”the law of this country still has so much in common with the law of other common law countries.

The Civil Law

The origins of the civil law go further back. They can be traced to the Twelve Tables of the Republic of Rome（probably in the fifth century B. C. ）. In its origin, it is the law of the city of Rome, the law applied to a citizen（in Latin, civis）of Rome as opposed to the law applied to a non-citizen. The expression“civil law”, in Latin jus civilis, literally means the law of the citizens of Rome.

After the fall of the Western Roman Empire（476 A.D. ）, the so-called barbarians brought their law to Rome, and although Roman law continued to apply to the Romans，the Germanic influence grew quickly and the law became more and more a mixture of Germanic and Roman law. This would later be known as the vulgarized Roman law. This law had very little in common with the classic Roman law. Canon law, the law of the Catholic Church, was the only Western legal system that kept intact many elements of the Roman law. However, in 529-534, the Eastern Roman Emperor Justinian published the Corpus Juris Civilis, an articulation and reformulation of Roman law. The Justinian Code and accompanying compendia remained in force in Byzantium until and even after the fifteenth-century conquest by the Ottoman Turks.

At the end of the eleventh century, the University of Bologna started teaching Roman law, more specifically the Corpus Juris Civilis. This was at first a purely intellectual endeavor since Roman law was no longer the law anywhere in Western Europe. This marked the beginning of what would later be known as the resources of Roman law. Soon other Western European universities followed the Bologna's lead and after a few centuries and for reasons too complex to be considered here, the Roman law was received almost everywhere in continental Europe. It became the jus commune（the“common law”）of continental Europe.

The Roman law actually“received”was in fact limited to what we call“private law”（property, torts, contracts, etc. ）. That is why civilian jurists refer to what we call private law simply as“the civil law”（persons, property and obligations）.

Although most civil law countries now have a civil code, codification is in fact a fairly recent phenomenon. The first French Civil Code dates back only to 1804 and the first German Civil Code, to 1896（in force in 1900）.

The French and German Codes are the two main civil law models. Napoleon brought his Code wherever he and his armies traveled. The French model has been influential in Latin countries both in Europe and inAmerica（Central and South America, Louisiana and Quebec）. It has also influenced former European countries before the Soviet occupation. German law has also been received by Japan.

2. Legal Methods—A Comparison

You must understand that a civil-law legal method course would be completely different from the course you are now taking. It is important at the beginning of your legal career that you realize that law can take different forms and play different roles in different societies and cultures. What you will be studying is not the law as it necessarily has to be but the law as it is in the United States. Here are a few differences between the civil law and common law.

First and foremost, in common law countries, cases are usually considered to be the primary source of law. Your legal method class starts with the study of cases. In civil law countries, cases are simply not a source of law—at least in theory. The reality might well be that legislation has become extremely relevant in common law countries and that cases are becoming more and more relevant in civil law countries, but the attitudes of civilians and common lawyers toward legislation and cases differ greatly.

Civil law jurists will consider the civil code as an all encompassing document. They will interpret it generously in order to allow it to reach its goal of regulating the whole private law. The code lends itself to this kind of interpretation since its articles are usually drafted in very general and abstract terms.

On the contrary, in common law jurisdictions legislation tends to be considered as an exception to the case law. The courts therefore have a tendency to interpret legislation more restrictively. In consequence both the courts and the legislators tend to enunciate legal rules in very specific terms meant to resolve very specific problems. Generally, cases and legislation will not tend to use abstract terms or to enunciate general principles.

Civil law students will read“law doctrine”more than cases. The“doctrine”is the cumulated writings of law professors on what the law is or should be. In civil law the“doctrine”is considered to be a source of law and a highly respected one. You have to remember that the University, not the courts, reintroduced the civil law in Continental Europe. It is therefore not surprising that law professors still have an important role in defining the law. Common law professors generally do not enjoy a similar prestige within their own jurisdiction. Here the judges get most of the prestige.

Legal education differs a lot from country to country, but it is fair to say that American legal education is very original and in many respects unique. The case method or Socratic method is peculiar to this country. It must be clear to you by now that the“case”method could not have been thought of in a civil law country. In those countries（as in the case in England）law is an undergraduate degree. Legal education tends to be longer than in the United States. The teaching style is magisterial—the professor exposes the law to his or her students, who take notes and do not intervene in class.

Legal Terms

federation n．联邦

jurisdiction n．管辖权，管辖区

civil law n．罗马法；民法

common law n．普通法；习惯法；判例法

local customs n．地方习惯

royal courts n．王室法院

legislation n．立法

petition v．诉请；向……提出请求；n．申诉；申请；[美]起诉状

equity n．衡平法

Chancery n. [英]文秘署；衡平法院；大法官法庭

judicial a．法院的；司法的

appeal n. &v．上诉

Privy Council n. [英]枢密院

canon law n．教会法

Corpus Juris Civilis n.《国法大全》，《民法大全》

Justinian Code n．查士丁尼法典（=Corpus Juris Civilis）

Notes

1. This text is adopted from Legal Methods by Jane Ginsgurg.

2. William the Conqueror did not abolish the local customs and the local courts. William wanted to be seen as the successor of the previous king and not as a conqueror.

3. Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly, so as to achieve what is sometimes referred to as“natural justice. ”It is often confusingly contrasted with“law”, which in this context refers to“statutory law”（the laws enacted by a legislature, such as the United States Congress）, and“common law”（the principles established by judges when they decide cases）. In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a court of law can award is money damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often this form of relief is in practical terms more valuable to a litigant.

Today, in almost all common law countries, the same court exercises both the common law and the equity jurisdictions.

4. The common law was“received”in many countries but its reception has been most successful in countries where the European settlers became a majority and imposed their law over indigenous populations.

“Reception”refers to the process by which one political entity adopts the law of another.

5. Twelve Tables.

The earliest statute or code of Roman law, framed by a commission of ten men, B. C.450, upon the return of a commission of three who had been sent abroad to study foreign laws and institutions. The Twelve Tables consisted partly of laws transcribed from the institutions of other nations, partly of such as were altered and accommodated to the manners of the Romans, partly of new provisions, and mainly, perhaps, of laws and usages under their ancient kings. They formed the whole later development of Roman jurisprudence. They exist now only in fragmentary form. These laws were substantially codification, and not merely an incorporation, of the customary law of the people. There were Greek elements in them, but still they were essentially Roman.

6. In its origins, it is the law of the city of Rome, the law applied to a citizen of Rome as opposed to the law applied to a non-citizen.

In the New Testament, St. Paul, because he was a citizen of Rome, was entitled to be tried according to Roman law. In fact, according to the New Testament, Paul was even entitled to be tried in Rome in front of an imperial court.

7. Although most civil law countries now have a civil code, codification is in fact a fairly recent phenomenon.

Scotland—in many respects a civil law jurisdiction—does not have a civil code.

Exercises