Common Law v Civil
Many thanks to Jimmy Akin, http://www.typepad.com/t/trackback/1594439 who has such a good mind and a diverse set of interests. This piece from Legal Affairs, details the theory of four economists who analyzed how the laws (or the legal tradition of a country) impacts its economy. Some of their conclusions are just what we might expect. Others are not.
http://www.legalaffairs.org/issues/January-February-2005/feature_thompson_janfeb05.html
It seems to me the greater difference in economies is in those countries with a STABLE legal system as opposed to those which use either system (common or civil). Is common law older than civil law? As I understand it common law developed out of custom or rather practical experience, whereas civil law derived from legal theorems and their interpretation.
I found these sites helpful: http://www.svpvril.com/comcivlaw.html http://www.bartleby.com/65/ci/civillaw.html
http://www.bartleby.com/65/co/commonla.html
So, little do I know about this subject. I will ask my lawyer friends at pajamaguy to opine.
posted by Skip James @ 12/28/2004
1 Comments:
I asked my friend LAGuy to address the difference between Common and civil law. Here is his reply:
http://pajamaguy.blogspot.com/2004/12/requests.html
"Like many legal questions, the basic answer is actually pretty easy, even if many lawyers would like to pretend it's a mystery. Of course, my answer will also be oversimplified and thus useless for any deep (or graded) discussion.
Common law is judge-made law. It's law that's been created over the years by jurists and their numerous precedents which continue to be respected. It's law by accretion, rather than creation directly by statute. The British system is common law, as are many of their former colonies, including the USA. At present, in every country I've aware of with a common law tradition, this law has been codified into statutes.
Civil law is used in continental Europe and pretty much everywhere else with an organized court system. It's law that's specifically written down as a code with basic rules and principles for running a society. Civil law was originally Roman law and has been modified by many legal scholars since. In the past few hundred years, the specifics of this code have been greatly changed in many different ways in many different countries (whereas a few hundred years ago much of Europe shared a similar civil law).
The main difference in how common law and civil law societies operate is in how the courts approach the law. In civil law countries, the code is seen as the basic source of law, whereas in common law countries, judge-made law--precedent--is at least as important as the statutory law. Judges in civil law countries will explain their reasoning but generally not site previous cases. A popular example to demonstrate what civil law is like is an umpire, who determines how baseball rules should be applied, but doesn't care what previous umpires have done in similar situations.
A number of places have an official mix of both common and civil law. (I think Louisiana is am example, where they've had American common law mixed with the French Napoleonic Code.)
However, the truth is, in the real world, the distinction between the two systems is harder and harder to maintain. Common Law countries have legislatures that pass reams of laws that specifically state what must be done in both general and specific situations, and often overturn long-held common-law rules. Meanwhile, though civil law courts may keep up the pretense that it's legislatures who make laws and courts who interpret them, there is simply no way to "interpret" the law without creating new rules and applications that fill in what legislatures by necessity will leave out; furthermore, many courts in civil law countries are quite mindful of past cases.
There are secondary differences between civil and common law, some would claim, such as differing emphases on society versus the individual, but I question if these differences are consistent or meaningful.
posted by LAGuy @ 1:54 AM
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