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Judicial independence is a hallmark of the
American legal system. As a co-equal branch of government, the
judiciary -- to a remarkable degree -- operates free of control
by the executive and legislative branches, deciding cases
impartially, uninfluenced by popular opinion. The American
people respect their courts and judges, even if they sometimes
criticize them. In this contrast of common v. civil law, U.S.
District Court Judge Peter Messitte (Maryland), considers some
basic aspects of both systems and explains how the American
common law system compares with that of civil
law.
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The two principal legal systems in the world today are those of
civil law and common law. Continental Europe, Latin America,
most of Africa and many Central European and Asian nations are
part of the civil law system; the United States, along with
England and other countries once part of the British Empire,
belong to the common law system.
The civil law system has its roots in ancient Roman law, updated
in the 6th century A.D. by the Emperor Justinian and adapted in
later times by French and German jurists.
The common law system began developing in England almost a
millennium ago. By the time England's Parliament was
established, its royal judges had already begun basing their
decisions on customary law "common" to the realm. A body of
decisions was accumulating. Able lawyers assisted the process.
On the European continent, Justinian's resurrected law-books and
the legal system of the Catholic Church played critical roles in
harmonizing a thousand local laws. England, in the midst of
constructing a flexible legal system of its own, was less
influenced by these sources. It never embraced the sentiment of
the French Revolution that the power of judges should be curbed,
that they should be strictly limited to applying the law such as
the legislature might declare.
Thus, British colonists in America were steeped in this
tradition. Indeed, among the grievances enumerated in the
American Declaration of Independence were that the English king
had deprived the colonists of the rights of Englishmen, that he
had made colonial judges "dependent on his will alone for the
tenure of their offices" and that he had denied the people "the
benefits of Trial by Jury."
After the American Revolution, English common law was
enthusiastically embraced by the newly independent American
states. In the more than 200 years since that time, the common
law in America has seen many changes -- economic, political and
social -- and has become a system distinctive both in its
techniques and its style of adjudication.
How does America's common law system compare with that of civil
law?
"Judge-made" Law
It is often said that the common law system consists of unwritten
"judge-made" law while the civil law system is composed of
written codes. For the most part, law in the United States today
is "made" by the legislative branch. To some extent, however,
the judge-made law analogy is true.
Historically, much law in the American common law system has been
created by judicial decisions, especially in such important areas
as the law of property, contracts and torts -- what in civil law
countries would be known as "private delicts." Civil law
countries, in contrast, have adopted comprehensive civil codes
covering such topics as persons, things, obligations and
inheritance, as well as penal codes, codes of procedure and codes
covering such matters as commercial law.
But it would be incorrect to say that common law is unwritten
law. The judicial decisions that have interpreted the law have,
in fact, been written and have always been accessible. From the
earliest times -- Magna Carta is a good example -- there has been
"legislation," what in civil law systems would be called "enacted
law." In the United States, this includes constitutions (both
federal and state) as well as enactments by Congress and state
legislatures.
In addition, at both the federal and state levels, much law has
in fact been codified. At the federal level, for example, there
is an internal revenue code. State legislatures have adopted
uniform codes in such areas as penal and commercial law. There
are also uniform rules of civil and criminal procedure which,
although typically adopted by the highest courts of the federal
and state systems, are ultimately ratified by the legislatures.
Still, it must be noted that many statutes and rules simply
codify the results reached by common or "case" law. Judicial
decisions interpreting constitutions and legislative enactments
also become sources of the law themselves, so in the end the
basic perception that the American system is one of judge-made
law remains valid.
At the same time, not all law in civil law countries is codified
in the sense that it is organized into a comprehensive organic,
whole statement of the law on a given subject. Sometimes
individual statutes are enacted to deal with specific issues
without being codified. These simply exist alongside the more
comprehensive civil or penal codes of the system. And while
decisions of the higher courts in a civil law jurisdiction may
not have the binding force of law in succeeding cases (as they do
in a common law system), the fact is that in many civil law
countries lower courts tend to follow the decisions of higher
courts in the system because of their persuasive argumentation.
Nevertheless, a judge in the civil law system is not legally
bound by the previous decision of a higher court in an identical
or similar case and is quite free to ignore the decision
altogether.
The Concept of Precedent
In the United States, judicial decisions do have the force of law
and must be respected by the public, by lawyers and of course, by
the courts themselves. This is what is signified by the "concept
of precedent," as expressed in the Latin phrase stare
decisis -- "let it [the decision] stand." The decisions of a
higher court in the same jurisdiction as a lower court must be
respected in the same or similar cases decided by the lower
court.
This tradition, inherited by the United States from England, is
based on several policy considerations. These include
predictability of results, the desire to treat equally everyone
who faces the same or similar legal problems, the advantages to
be gained when an issue is decided that affects all subsequent
cases and respect for the accumulated wisdom of lawyers and
judges in the past. But it is also understood that primary
responsibility for making law belongs to the legislative
authority; judges are expected to interpret the law, at most
filling in gaps when constitutions or statutes are ambiguous or
silent.
Thus, there are important limiting features to the concept of
precedent. First and foremost, a court decision will only bind a
lower court if the court rendering the decision is higher in the
same line of authority. For example, a decision of the U.S.
Supreme Court on a matter of constitutional or ordinary federal
law will bind all U.S. courts everywhere because all courts are
lower and in the same line of authority as the Supreme Court in
such matters. But decisions of one of the several U.S. Courts of
Appeals -- the intermediate federal appeals courts -- will only
bind federal trial courts within their respective regions.
Decisions of a state supreme court on the meaning of a state law
where that court sits will be binding everywhere, so long as the
state court's decisions do not conflict with constitutional or
federal statutory law.
American judges tend to be very cautious in their
decision-making. As a rule, they only entertain actual cases or
controversies brought by litigants whose interests are in some
way directly affected. In addition, judges usually decide cases
on the narrowest possible grounds, avoiding, for example,
constitutional issues when cases may be disposed of on non-
constitutional grounds. Then, too, the "law" that judges state
is only so much of their decision as is absolutely necessary to
decide the case. Any other pronouncement on the law is
unofficial.
Another important limiting feature of the concept of precedent is
that the later case must be the same or closely related to the
previous one. Unless the facts are identical or substantially
similar, the later court will be able to distinguish the earlier
case and not be bound by it.
The highest court of a jurisdiction, e.g., the U.S. Supreme Court
for the United States or a state supreme court within its own
state, can overrule a precedent even where the facts of the later
case are identical or substantially similar to the earlier case.
In 1954, for example, in the famous school integration of
Brown v. Board of Education, the U.S. Supreme Court
overruled an analogous decision it had rendered in 1896.
But such direct over-ruling is not common. What is more likely
is that the high court, by distinguishing later cases over time,
will move away from an earlier precedent which has become
undesirable. But for the most part, the long standing precedents
of the high courts remain.
An Organized Law
Where does one go to find the law in America? It might be
supposed that with both enacted law and judicial decisions
comprising the law, the search would be difficult. But the task
in fact is relatively easy. Even though much American law is not
codified, it still has been systematized and organized by subject
matter. Legal encyclopedias and treatises written by learned
professors and practitioners set out the law in logical sequence,
typically providing historical perspectives as well. These books
of authority contain references to the principles and specific
rules of law in a given branch of law, as well as citations to
relevant statutes and judicial decisions. Accessing statutes in
"codebooks" and cases in bound volumes called court reports, and
nowadays accessing both by computer, is a relatively
straightforward undertaking.
But it also bears noting that in the common law system, treatise
writers do not have the same importance that they do in the civil
law system. In civil law countries, such authorities are often
considered sources of law, looked to for the development of the
doctrine relative to a given subject matter. Their statements
are given considerable weight by civil law judges. In the United
States, in contrast, doctrine developed by treatise writers lacks
binding force, although it may be cited for its persuasive
effect.
Common Law v. Civil Law
Apart from these features, there are a number of institutions
associated with the common law system not usually found in civil
law systems. Principal among these is the jury which, at the
option of the litigants, functions in both civil and criminal
cases. The jury is a group of citizens, traditionally 12 in
number, summoned at random to determine the facts in a lawsuit.
When a trial by jury is held, the judge will instruct the jury on
the law, but it remains for the jury to decide the facts. This
means that ordinary citizens will decide which party will prevail
in a civil case, and whether, in a criminal case, the accused is
guilty or innocent of the charge against him or her.
The institution of the jury has had an important shaping effect
on the common law. Because jurors are brought in on a temporary
basis to resolve factual issues, common law trials are usually
concentrated events, sometimes only a matter of days (although
occasionally possibly weeks or months in duration). Emphasis is
on the oral testimony of witnesses, although documents also are
presented as evidence. Lawyers have responsibility for preparing
the case; the trial judge performs no investigation of the case
prior to trial. Lawyers, acting as adversaries, take the lead in
questioning the witnesses at trial, while the judge acts
essentially as a referee. Testimony is recorded verbatim by a
court reporter or electronically.
The trial court, which is the "court of first instance" (i.e.,
where the case is first heard) in the American system, is where
the factual record of the case is made. Generally speaking,
appeals courts confine their review of the lower court record to
errors of law, not of fact. No new evidence is received on
appeal.
All this stands in marked contrast to what is usually found in
civil law systems, where jury trials are for the most part
unknown. In a given case, instead of a single continuous trial,
a series of court hearings may be held over an extended period.
Documents play a more important role than witness testimony. The
judge actively investigates the case and also conducts the
questioning of the witnesses. Instead of a verbatim record of
the proceedings, the judge's notes and findings of fact comprise
the record. Appeals may be taken both on the facts and the law,
and the appeals court can and, sometimes does open the record to
receive new evidence.
Despite their differences, both the common and civil law systems
have as their goal the just, speedy and inexpensive determination
of disputes.
U.S. courts have become particularly sensitive in recent years
for the need to continuously reappraise their processes in order
to improve the quality of justice. As a consequence of these
efforts, there are many other aspects of court activity in the
U.S. These range from alternate dispute resolution mechanisms
(including arbitration and mediation) to such procedural devices
as default and summary judgment, used by judges to decide cases
at an early stage without having to proceed to a formal trial.