Civil law vs common law

[Hans de Vries]

Any lawyers out there?

 

What's the practical difference between how civil and common law systems work nowdays? Modern publications mention an ongoing convergence between these two with common law countries codifying their law by issuing more statues and civil law systems becoming a bit more common law-like through increasing the importance of court decisions. Is there any lawyer who could express an opinion about that?

 

Besides that, how hard would it be for someone who operates within the continental legal framework to adjust to English law for example?

[imatfaal]

Civil law systems have a big book that contains all the laws - common law jurisdictions can form new laws through the precedent set by old cases. The difference in the western world boils down to Roman/French influence for civil law and English influence for common law.

 

Civil law systems tend to become more common law-like because of the impossibility of "correct" statutory interpretation. Civil codes have a finite length and are written by humans (opinions differ on that point) so in the messiness of court it becomes essential to interpret the meaning of the code; we do this via rules of interpretation, rules of thumb, and what other judges have done in the past (especially the clever judges in higher courts). Thus you have the beginning of a precedent based system. If a code is complete it will be inflexible - it is is flexible then there will be grey areas.

 

Common law systems tend to become more like civil systems because politicians and the media cannot help but change things; they have been given the authority by the democratic mandate to do so - and judges have not. So when the law is sticking in the past, fails to reflect society's ethics, isn't functioning due to technical issues, or is just plain unpopular you have two options; the judges do what they are not supposed to do and move deliberately away from precedent - or the politicians do what they are supposed to do and legislate. The English and Welsh Common Law system also deals with the European Union at every level - so there is a fertilization of continental style law into the E&W courts. There is already a terrible amount of statute in the E&W system - but the way this is handled is just different than continental code.

 

Common Law systems claim that the law is distinct from Government and that it stands as a bastion against the other centres of power - for good examples look at some of the quotes of the old Jurist Lord Coke many of them said to the Monarch. There is a conceit in common law that it is merely the ultimate development of reason and rationality - but in reality it is the product of the biases, preconceptions, and subconscious of a tiny white male elite of society.

 

A good civil lawyer from the continent will have no trouble finding work - cos he can work in EU law, or if an HR specialist in laws concerning the ECHR or at ECtHR. Switching to English&Welsh practice would be more difficult - but highly dependent on the are of practice. Huge realms of private law (person to person) are based on international standards - EU, WTO, etc so transference might not be so bad; but Contract law would be most alien - and as a majority of the worlds international commercial contract cases are settled in London (we have an open door policy) then this sounds terrible but there might be a niche. Criminal law (state vs person) would be more problematic as the laws are different, and the system is too. Administrative Law (about the state) would be a nightmare as there is no Constitution (just a load of conventions, common law, bits of statute, and international/EU treaties)

 

I could literally write for a few hours on this rubbish. any more exact questions? I could probably dig out academic references when I am back at my offices if you care for some

[Strange]

Isn't the other big difference between the English and the Continental systems that the former is adversarial and the latter is investigative?

[Hans de Vries]

imatfall, thanks for a detailed answer. I do have more questions.

1. What in your opinion are the advantages and disadvantages of both systems? Do you find any of them better than the other? As a person coming from a country with civil law system, I find it somewhat more "natural".

2. How hard it is for lawyers in England to earn a decent living (i.e. national average income - around

£25,000-30,000), either as EU law specialists or as specialists in some areas of English law? In the US is a disaster (or at least, that's what I heard) and I guess it would not be easy in England either - as any person coming from another EU country would have to compete with locals, including extremely able graduates of Oxford, Cambridge etc.

[imatfaal]

Isn't the other big difference between the English and the Continental systems that the former is adversarial and the latter is investigative?

 

Yes - but that isn't necessarily (although the vast majority is) tied into the difference between Common Law and Civil Code. And remember the division between precedent based common law and text based civil code extends across all the law - not merely criminal trials prosecuted by the state. Quite large portions of some private law cases in E&W will resemble investigatory tribunals.

 

imatfall, thanks for a detailed answer. I do have more questions.

1. What in your opinion are the advantages and disadvantages of both systems? Do you find any of them better than the other? As a person coming from a country with civil law system, I find it somewhat more "natural".

2. How hard it is for lawyers in England to earn a decent living (i.e. national average income - around

£25,000-30,000), either as EU law specialists or as specialists in some areas of English law? In the US is a disaster (or at least, that's what I heard) and I guess it would not be easy in England either - as any person coming from another EU country would have to compete with locals, including extremely able graduates of Oxford, Cambridge etc.

 

 

1. Flexibility vs Lack of Democratic Mandate. Separation of Powers vs Judicial Accountability. etc

 

I think there is more nuance and adaptability in the common law system - it is less of a "one size fits all" approach. But common law requires a huge body of cases to serve as the precedental environment - you cannot set it up from scratch it has to have "always existed from time immemorial". Thus new republics and democracies have to shoehorn old cases from the courts of E,NI&W into their new constitutional framework. But the subtlety and ability of the London High Courts especially to find a repeatable, justifiable, and defensible solution to a myriad of complex and tortuous cases is testament to the special nature of Common Law. So many international disputes in Commerce are settled basis English Law / London Courts that it is difficult to judge other systems against it - unless two parties have a compelling reason not to use London then more often or not they do. Even if the contract requires some other jurisdiction / forum / law then if either of the parties is UK resident, if the contract was made in UK, or if any part of the business impacts on the UK - then the London High Court will claim jurisdiction if requested by one of the parties.

 

There is also the stupid conceit mentioned above that common law judges hold dear to their hearts - this is that no judge ever makes new law he (and it is mostly he) just discerns the law from the panel of old cases. When it comes to a complete volte face - as can sometimes happen this is just absurd ( R v R - the marital rape case is a point in question). Changes like this should be lead by the democratically elected legislators - but all too often it is left to judges to change the law (although they would not admit to that) to meet society's changing demands. You can also check out the ground-breaking cases of the US Supreme Court - Marbury v Madison, Roe v Wade etc - this is a different spin as the SCOTUS has overtly and explicitly taken powers into itself to rule (and over-rule) on constitutional matters. The Supreme Court in the UK (ie not just E,NI&W but Scotland etc as well) does not have these powers and must defer to the Sovereign Power of the Queen in Parliament (basically this is Prime Minister, the Ministers, and possibly the House)

2. Pass. I am not a practitioner - and cherish my ignorance on the inns-and-outs of the legal profession. In this case I would say that google is your friend and you will find oodles of information on the web. I would start with those magic circle law firms that have representation across borders. By the way you would also have a stumbling block for advocacy as there are special rules about court-advocacy, costs, and representation in the UK - but that is a long way down the road

[StringJunky]

Very interesting Imatfaal. If a High Court judge accepts a precedent to decide a case against the defendant and they subsequently decide to appeal to an Appeal Court, would a successful appeal by them tend to set a new precedent in that type of case?

[imatfaal]

That aside - precedent has different levels of authority in the real world. Something said as "part of the reasoning" by the House of Lords Appellate Committee - now the Supreme Court - or by the Court of Appeal or Court of Session is very strong indeed and lower courts would not seek to avoid or challenge it; however they might seek to distinguish it through a claim that the facts are different and thus the law to be followed is not the same. However something mentioned "in passing" in a judgment by a higher court - this is the majority of the time - is not quite so binding to a lower court and is thus more easily avoided or distinguished on the facts. One of the beauties / terrors of the common law system is that there is no clear defining line between "part of reasoning" and merely comments "in passing" - and what may be undeniable precedent from one point of view is merely historical baggage from the opposing point of view.

 

In short - and simplistically to almost the point of absurdity as this whole area is very difficult to pin down - a clear statement by HofL or CofA on a similar matter that is not distinguished on the facts is binding to lower courts. Comments in passing will be almost binding on lower courts and persuasive to other higher courts

 

If you wanna look this up by the old names - ratio decidendi is the reasoning and obiter dictum is the passing comment

Very interesting Imatfaal. If a High Court judge accepts a precedent to decide a case against the defendant and they subsequently decide to appeal to an Appeal Court, would a successful appeal by them tend to set a new precedent in that type of case?

 

To answer a bit more exactly - what would probably happen is that the CofA would probably distinguish on facts, if not then they might state that the lower court had misapplied the earlier case law (ie by treating obiter as ratio or vice versa), or they might go past the case previously seen as precedent and base their reasoning on an older case or related case from the HofL or CofA. Courts never set precedent explicitly - they decide a case and give their reasons; if this reasoning is followed by subsequent courts then in is precedent.

[StringJunky]

That aside - precedent has different levels of authority in the real world. Something said as "part of the reasoning" by the House of Lords Appellate Committee - now the Supreme Court - or by the Court of Appeal or Court of Session is very strong indeed and lower courts would not seek to avoid or challenge it; however they might seek to distinguish it through a claim that the facts are different and thus the law to be followed is not the same. However something mentioned "in passing" in a judgment by a higher court - this is the majority of the time - is not quite so binding to a lower court and is thus more easily avoided or distinguished on the facts. One of the beauties / terrors of the common law system is that there is no clear defining line between "part of reasoning" and merely comments "in passing" - and what may be undeniable precedent from one point of view is merely historical baggage from the opposing point of view.

 

In short - and simplistically to almost the point of absurdity as this whole area is very difficult to pin down - a clear statement by HofL or CofA on a similar matter that is not distinguished on the facts is binding to lower courts. Comments in passing will be almost binding on lower courts and persuasive to other higher courts

 

If you wanna look this up by the old names - ratio decidendi is the reasoning and obiter dictum is the passing comment

 

To answer a bit more exactly - what would probably happen is that the CofA would probably distinguish on facts, if not then they might state that the lower court had misapplied the earlier case law (ie by treating obiter as ratio or vice versa), or they might go past the case previously seen as precedent and base their reasoning on an older case or related case from the HofL or CofA. Courts never set precedent explicitly - they decide a case and give their reasons; if this reasoning is followed by subsequent courts then in is precedent.

This seems sensible because it has been repeatedly reviewed and affirmed as just. I imagine one needs prodigious recall of past cases to be a good judge or lawyer.

[John Cuthber]

A couple of points, the average salary in the UK is quite a good one. Most people are on rather less than the average.

 

Most lawyers will earn a very good salary.

According to this

http://www.prospects.ac.uk/solicitor_salary.htm

the starting salary is £K17

Which is something like £5000 more than the median salary for that age group

http://en.wikipedia.org/wiki/Income_in_the_United_Kingdom

 

The barristers can easily exceed £1K per hour and in some cases the money just gets silly.

http://www.dailymail.co.uk/news/article-401488/Britains-lawyers-charge-staggering-5-000-hour.html

[imatfaal]

This seems sensible because it has been repeatedly reviewed and affirmed as just. I imagine one needs prodigious recall of past cases to be a good judge or lawyer.

 

Or access to WestLaw or Lexis-Nexis The court reports, practitioner text books, and legal journals are essential for anyone in the law - but recall is useful but not crucial; preparation in a back office is what profits a party to a dispute not off-the-cuff speechifying in court. A good memory is very helpful - but perhaps more important is the ability to read quickly and critically, to distil the important information from reams of paperwork, and to hold the details of the case in one's head so that no important case law or comment are read but ignored.

[Hans de Vries]

I want some recommendations:

1. A good introduction to common law, particularily that of England and Wales (in form of a book)

2. A good UK legal publisher or several publishers - at best with an online bookstore.

[studiot]

Do I see Rylands embracing Fletcher

 

or

 

Carlill endorsing the Carbolic Smoke Ball

 

or

 

Kramer kissing Kramer

 

As this is the season of goodwill?

 

[imatfaal]

I want some recommendations:

1. A good introduction to common law, particularily that of England and Wales (in form of a book)

2. A good UK legal publisher or several publishers - at best with an online bookstore.

Wikipedia is pretty good on law. If not have a look at Hammicks or Wildys. They are both very strong legal bookshops (and publishers) - be careful to specify that you want introductions at a laypersons level; they are both in the legal area of london and cater for everyone fro students/amateurs all the way up to practitioner texts costing thousands (You know a book is exclusive/expensive when the cost is higher than the circulation) The Legal Methods and Systems book I used was by Stychin and Mulcahy; but then I had to buy that one as they were my teachers.

 

And with reference to Mrs Carlill - my above text recommending bookshops and books was mere puff and not an intention to form legal relations

[Hans de Vries]

Thanks!

 

Imatfaal, if you don't practice law, what's your relation to law? Are you a theoretician? A hobbyist?

[imatfaal]

Thanks!

 

Imatfaal, if you don't practice law, what's your relation to law? Are you a theoretician? A hobbyist?

 

I have academic qualifications in law - both undergrad and postgrad - but no professional qualifications. I use very few of the facts, cases, and statutes I learnt - but I still appreciate the critical and analytical skills I was taught. I work in the shipping world which is notoriously litigious so being able to spot a legal bluff is very useful.

 

BTW - I really like the idea of being a Legal Theoretician; this isn't a phrase often used in English. But it is much cooler than the more usual close alternatives of Legal Academic, Academic Lawyer or Legal Theorist. I may have to dust off my text books to see if I could earn the title! My favourite source in the philosophical side of law was the French Philosopher Michel Foucault - now he was a legal theoretician.

[StringJunky]

 

I have academic qualifications in law - both undergrad and postgrad - but no professional qualifications. I use very few of the facts, cases, and statutes I learnt - but I still appreciate the critical and analytical skills I was taught. I work in the shipping world which is notoriously litigious so being able to spot a legal bluff is very useful.

 

BTW - I really like the idea of being a Legal Theoretician; this isn't a phrase often used in English. But it is much cooler than the more usual close alternatives of Legal Academic, Academic Lawyer or Legal Theorist. I may have to dust off my text books to see if I could earn the title! My favourite source in the philosophical side of law was the French Philosopher Michel Foucault - now he was a legal theoretician.

Do you need to apprentice to a law firm for a while to earn professional status?

[imatfaal]

Do you need to apprentice to a law firm for a while to earn professional status?

 

It is not something I have looked into but I can say that you must start off doing professional qualifications via taught courses (at "The School of Law" and other similar training centres) - a law degree gets you credit towards these qualifications but not exemption. You then need to work within practices and chambers to gain the necessary time, experience, and even more specialized knowledge required for the practitioner qualifications.

 

A law degree is not like a medical degree - medicine in university in the uk is a vocational degree that whilst not completing a medics training does result in essential qualifications and an entry into practice. A law degree is purely academic work - we might study procedure and play at mooting but it is neither a necessary part to being a solicitor or barrister nor sufficient to become a practitioner of any sort.

[StringJunky]

 

It is not something I have looked into but I can say that you must start off doing professional qualifications via taught courses (at "The School of Law" and other similar training centres) - a law degree gets you credit towards these qualifications but not exemption. You then need to work within practices and chambers to gain the necessary time, experience, and even more specialized knowledge required for the practitioner qualifications.

 

A law degree is not like a medical degree - medicine in university in the uk is a vocational degree that whilst not completing a medics training does result in essential qualifications and an entry into practice. A law degree is purely academic work - we might study procedure and play at mooting but it is neither a necessary part to being a solicitor or barrister nor sufficient to become a practitioner of any sort.

So, outside the legal profession - solicitors, courts, etc - what else can you do with a law degree where it is specifically a requirement? I don't mean in terms of transferable skills, of which there are no doubt plenty.

Edited December 25, 2014 by StringJunky

[imatfaal]

So, outside the legal profession - solicitors, courts, etc - what else can you do with a law degree where it is specifically a requirement? I don't mean in terms of transferable skills, of which there are no doubt plenty.

 

"what else" Sorry, I might not have been clear; a law degree is not a requirement of a position in the legal profession. Many younger practising lawyers have law degrees - but this is a recent trend; law as a degree can be seen in some ways as a shortcut - but not a requirement.

 

I know of nothing that a law degree is a requirement for - even in post-grad law studies I knew of those with no undergraduate law degree (some were converted practitioners and others philosophy graduate). Another of my favourite legal theorists is Stanley Fish - Professor of Law at Duke - and I don't think he has any strictly law-based academic qualifications.

 

For the older (probably English) reader the character Maurice Zapp in David Lodge's University novels is based on Fish whilst he was still and

Academic in the English Faculty at Berkeley before switching to law at Duke