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Common Law or [Roman] Civil Law

INTRODUCTION.

OF THE CIVIL LAW AND THE COMMON LAW

There have grown up in the history of nations only two great systems of law, the civil law of ancient Rome, and the common law of England. All the most civilized nations in the world are governed by either of these two great schemes of justice. Though the civil law and the common law have much in common, yet in many important particulars they are the opposites of each other. In the course of his studies, the student of law finds so much said, in an incidental way, about the civil law, that is calculated to mislead his judgment in regard to the true character of that scheme of justice, that it is important, at the outset of his walks over the fields of the common law, to give him some account of the civil law, and point out in what it differs essentially from the common law. This is a matter of much importance to every student who aspires to a comprehensive and enlightened knowledge of jurisprudence.

But it was under the empire, when the glory of the republic was gone, that the jurists attained their eminence, and in fact became the architects of the great system of Roman law. Though Scaevola and Sulpicius wrote treatises on the law, these treatises had no authority beyond the opinions of men learned in the law. But Augustus Caesar gave to a certain number of jurists the privilege of giving opinions in cases which might be referred to them by a judex; and if the jurists were unanimous, the judex was bound by their opinion; if they were not unanimous, the judex was left to adopt what opinion seemed to him best.

This system of jurisprudence was closely connected with the imperial theory and form of government, both by the manner of its growth and the political doctrines introduced into it by the writings of the jurists. The jurists were, in politics, imperialists; and they made their legal opinions support the imperial authority at all points of doctrinal application and administrative contact between it and the law. For though the theory of the republic was forgotten, and the right of revolution, so often exerted in the early history of Rome, was hardly even a matter of tradition, still it was deemed necessary, by the jurists, to vindicate to human intelligence, by some theory of right, an authority so stupendous as that of a Roman emperor. Therefore it was that the jurists invented the fiction of the lex regia, by which it was pretended that all the authority of the Roman people was irrevocably granted to the emperor. And, to complete their theory of absolutism, the jurists introduced into their writings, as a constitutional principle, the dogma, Whatever pleases the prince has the force of law.

If we now turn to the common law of England, we will find that, as far as administrative principles and forms of procedure are concerned, it is the opposite of the Roman civil law as it was molded under the empire. The principle which, in the practical administration of the two systems, marks the primary essential distinction between them, is the relative obligatory force under them of precedent or former decisions. Under the common law, former decisions control the court unconditionally. It is deemed by the common law indispensable that there should be a fixed rule of decision, in order that rights and property may be stable and certain, and not involved in perpetual doubts and controversies. Under the civil law the principles is different. Former decisions have not so fixed and certain an operation, but are considered as only governing the particular case, without establishing as a settled rule the principle involved in it. When a similar case occurs, the judge may decide it according to his personal views of the law, or according to the opinion of some eminent jurist. The civil law, as administered at the present time on the continent of Europe, possesses all the uncertainty and fluctuations of doctrine that results from the little respect paid by it to precedent.

http://www.lawlink.nsw.gov.au/lawlin...igelman_210204


The first and most distinctive aspect of common law procedure is its fundamentally pragmatic quality. We proceed by deciding the facts of particular cases. This process may take a very long time before a principle emerges by a process of induction. The common law method has never been more perceptibly described than it was on a number of occasions by Oliver Wendell Holmes. In one essay he wrote:

"It is the merit of the common law that it decides the case first and determines the principle afterwards ... It is only after a series of determinations on the same subject matter, that it becomes necessary to 'reconcile the cases', as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."[1]

What is involved in this process is the development of legal principles on the basis of actual practical decision-making and dispute resolution over long periods of time in the course of dealing with real problems that arise in real factual situations. This is, of course, a different process than that involved when applying a rule expressed in terms of a formulation of words contained in an overriding code that is to be applied to particular factual situations. That approach is the usual model of decision-making in civil law systems, whose jurisprudence is derived from Roman law and Canon law.....

The difference in approach between common law and civil law systems is well expressed in a metaphor derived from a cognate area of discourse in philosophy, namely epistemology, the theory of knowledge. One of the great controversies of the history of philosophy was between empiricists and rationalists. The former sought to relate knowledge, ideas, truth and meaning to experience, whereas the latter related these matters to pure reason, so that thought about such matters transcended mere experience. It was no accident that most empiricists were British - Bacon, Hobbes, Locke, Berkley, Hume, whose intellectual tradition included the common law method. On the other hand the rationalists - Descartes, Spinoza and Leibniz, were continental, whose intellectual heritage was Roman law and Canon law.

Francis Bacon expressed the contrast between the two schools of philosophy in the following way:

"Empiricists are like ants, they collect and put to use; but rationalists are like spiders, they spin threads out of themselves."[2]

The common law method is the way of the ant: collecting particular fact situations which give rise to decisions relating only to those fact situations and putting them to use by a process of analogy or adaptation in other factual situations.