Compare common law /civil law

CharacteristicsJurist vs. judgeNational identity

DichotomiesPublic law vs. private lawCivil law vs. commercial law

Appraisal of civil law

What does “civil” mean?

Civil practiceCivil procedureCivil lawCivilian court

Pope Gregory Receiving Canon Law (Stanza della Segnatura)

Compare common law /civil law

Process of national unificationCommon law:Civil law:

Check on judicial arbitrarinessCommon law:Civil law:

Unification actorsCommon law:Civil law:

Compare common law /civil law

Process of national unificationCommon law: unifying force in England (1066)Civil law: codes (citizens’) on Continent (1804)

Check on judicial arbitrarinessCommon law: jury, stare decisisCivil law: written legislative law / ancien regime

Unification actorsCommon law: bench and barCivil law: university-taught writers / professors

Hugo Grotius (1583-1645)

Dutch legal scholar, playwright, poetnatural law philosopher "social contract" theory of Stateseas free for mutual benefit of all Father of “international law”"property" from social consentnothing "inalienable” about it

Lord Mansfield (1705-1793)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 careerfounder of commercial law (nearly all principles)

Compare common law /civil law

Civil lawRoman-influencedUniversity-taught, professor-inspiredFormed across continent (ius commune / Latin) Distrust of judicial power

DichotomiesPublic law vs. private lawCivil law vs. commercial law

Common lawLocal customs (some Roman)Judicial / bar Centralized government (royal courts) Respect for judges

DichotomiesNo public law in EnglandCommon 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 Europelegislation, public officials, procedure, tax, public duties Become dependent on sovereign

National constitutional law / administrative law

Constitutional republicsSocial legislation and specialized courts

Public law in England

Public authorities subject to common law jurisdiction

Habeas corpus, mandamusTort actions against public figuresReview of administrative acts

No ConstitutionOmnipotence of ParliamentSeparation 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 agentsProtection of debtors / usury rulesSlow procedure

Medieval customary law (law merchant)Developed by guilds and corporations“traveled” with merchant (choice of law)Guild (later merchants) elect own judgesProcedure: like arbitration

National commercial law

Civil law rules based on law merchantFreedom of contract, alienabilityEx aequo et bono: According to what is right and good.Separate commercial code / courts (public choice)

English common lawAbsorbs law merchant in 17th and 18th CenturiesNegotiable instrumentsInductive, 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 positionsNot reading of laws / actual practice

Lex Mundi Project

Do common law or civil law courts enforce contracts more efficiently?

Landlord evicts non-paying tenantCreditor collects bounced check

Enlightenment idea: court access to ordinary citizens

Measure deviation from simple neighbor modelFormalism -- Quality of justiceQuality of justice -- Legal system

Lex Mundi Project

Measure formalismAccess: need for lawyers, formalities to bringEase: oral vs. written proceduresLegalism: need for justificationsInformation: regulation of evidenceSuperior reviewCount # procedural steps

Measure quality of judicial systemDuration of proceedingFairness, consistency, honesty (survey small firms)

Identify types of courts (transplanted legal systems)

Lex Mundi Project

Findings (formalism):1. Legal origins explains 40% of formalism2. Formalism prevalent in civil law countries3. 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.”