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JOSEPH
DAINOW
The Civil Law and the Common Law:
Some Points of
Comparison
INTRODUCTION
The interest
of
jurists
n
legal systems
other
than their own and
in
comparative
aw
has
been
a
matter of
long
tradition. At
any
rate,
during
the
twentieth
century
and
especially
rom about
thirty years
ago, there has been an extraordinaryrowth of this interest. Now,
with the
Common
Marketand
all
the
other
expanding
programs
of
international
rade
and
commerce,
t is
impossible
o
overemphasize
the
importance
of
understanding
he
nature
and
function of
legal
systems
f
othercountries.
In
the
legal
history
of
Western
Europe
and
of
the
countries
hat
received
heir
legal
systems
rom
these
sources,
ne
finds
the establish-
ment of the
two
great
legal systems
which are
often
made
the basis
of
comparative
aw
studies. This
does
not
overlook the
other
legal
systems
outsideof the continental ivil law and the commonlaw of
the
Anglo-Saxon
ountries.
There
are
of coursenot
only
the different
legal
systems
of
the Asiatic
countriesbut also within
the
European
continent
tself
there
s
the
legal
system
which has
long
been
in
effect
in
the
Scandinavian
ountries,
and there are
also the more recent
developments
n
the
Sovietcountries.
All
legal
systems
have the
same
purpose
f
regulating
and
harmoniz-
ing
the
human
activity
within their
respective
ocieties,
and in each
societythe legal systemformspartof the cultureand civilizationas
well
as
of the
history
and the life
of its
people.
The
events
of
their
respective
istory
have
led
towardcertain
undamental
imilarities
nd
differencesn
their
egal
systems.
In
the
countries f Western
civiliza-
tion,
the
two best-known
ystems
are
the civil
law and
the
common
law,
particularly
s
exemplified
n
France
and in
England.
The
concentrationn
this
article
on the
civil law
and
the
common
law
is
not
intended
to
derogate
rom
the
importance
and
values of
other egalsystems.At the sametime,it mustalsobe recognizedhat
thereare
many
differences,
or
example,
between
the
laws of
France
and
Germany,
as
well
as
between
England
and
the
United
States.
Nevertheless,
n
each
of
these
two
great
systems,
ivil
law and
common
JOSEPH
DAINOW
is
Professor
of
Law,
Louisiana
State
University,
Member
of
the
Board
of Editors.This
article
is
translatedand
adapted
from the
French
original
in
Liber
Amicorum
Professor
Baron
Louis
Friedricq
(Faculty
of
Law
of
Ghent,
1965),
with the
permission
of the
Editorial
Committee.
419
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3/18
THE
AMERICAN
JOURNAL
OF
COMPARATIVE
LAW
law,
there are
certain
characteristicsand
general
attributes
that
can
serve
as
bases for
a
general
comparison.
There are differentways of trying to explain civil and common law
as
legal systems.
One
way
might
be
to
examine the
elements
of
resemblance
or
the
points
of
difference,
or
even the
history
of
their
respective
establishment and
the
methods of their
development.
A
comparison
could
also
be
made from the
point
of view of
their social
and
economic
objectives
and
the
methods used
to
accomplish
these
ends.
All
these
points
of
view
have a
measure
of
truth,
and
they
should
really
be
appreciated
all
at once. On
the other
hand,
there are
those
people
who
say
that
there
no
longer
exists
any
real difference
between the civil law and the common law
by
reason of the
parallel
developments
that have taken
place
in
order
to
satisfy
the same
societal needs
in
general
conditions which are
similar-the
differences
which remain
being only
matters of
degree
rather
than nature.
There
are
also some
places
in which
the civil
law
and
the common law
have been
functioning together
in what
may
be called
a mixed
juris-
diction,
like
Louisiana,
Quebec,
Scotland
and South
Africa.
For
the
present
kind
of a
study,
the
essential
approach
is to search
for
an
understanding of these two systems, and especially to identify and
understand
the fundamental
differences
in
their
structures,
in their
methods of
thought
and
in their attitudes
towards
the law
as
a
legal
system.
I.
HISTORY
AND DEVELOPMENT
A
legal
system
is a
living
organism;
it
breathes,
it
grows,
it
evolves,
it is
part
of
the
life
of the
people
for whom it
functions.
Consequently,
the
first
step
in the
direction
of
an
understanding
of the civil
law
and
of
the
common
law
is to
glance
briefly
over
their
respective
history
and
development.
A. The
civil
law
The term
civil
law
is
derived
from
the
Latin
words
jus
civile,
by
which
the
Romans
designated
the laws
that
only
the
Roman
citizens
or
cives
were
originally
privileged
to
enjoy.
For
the
other
people
there
was
the
jus gentium.
It is sometimes
said that
the
countriesof the civil law are those which received their
legal
system
from
the
Roman
law.
While
this in
effect
is
true,
it is
only
part
of
the
story.
Furthermore,
his
reference
to Roman law can
be
appreciated
better
in the
light
of an
examination
of the nature
of its
develop-
ment
along
with
its historical
and
social
evolution
during
a
period
of at least
one
thousand
years,
from
the
beginning
of the formal
written
law in the
Twelve
Tables
up
to the
completion
of
Justinian's
codifica-
tions
and
compilations.
420
[Vol.
15
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4/18
1967]
DAINOW:
CIVIL
LAW AND THE COMMON
LAW
421
To
indicate
briefly
the
salient
points
which
standout
against
this
background:
here
was an
ancient
period
with a
very
narrow
legal
systemwhich had strict and limitedproceduralorms.When its in-
sufficiencies
aused
excessive
hardship,
here
was established
he
office
of the
praetor,
hereby
iberal
nfluences
ould make themselves
elt
and
be
given
concrete
application.
The
strict ancient
law,
the
jus
civile,
was
tempered
and
at the
same
time
supplemented
by
the
justice
and the
equity
of
the
new
remediesand
procedures eveloped
by
the
praetors.
As
publicregard
grew
for
the
small
numberof
highly
skilled
jurists,
their
opinions
were
often
sought
for
clarification
nd
guidance.
The
outstanding
uality
of theirachievement
rought
hem
and their
suc-
cessors
constantly
ncreasing
ecognition.
In
this
manner,
hey
served
not
only
as
technical
nterpreters
f
the written
text,
but
their knowl-
edge
and
their
wisdom also
became
indispensable
lements
in the
development
of the
law.
In
the
course
of time these
jurists
came to
enjoy
the
very
highest
prestige
n the
law;
emperors
and
magistrates
not
only
sought
their
consultation nd advice
but in
general
ollowed
and
adopted
heir
opinions.
During this time, not a matterof yearsor generationsbut of
centuries,
ome
effortswere
made
to
co-ordinate nd
group
the
rules
of
law;
there
were
also
attempts
to
compile
the
results of a
very
large
number
of actual
case
decisions,
especially
he
most
significant
ones.
It was
against
his
background,
nd
to be
understoodn
the
light
of
it,
that
Emperor
ustinian
rought
ogether
he
great
jurists
of his
day
and
had
them
compile
the
body
of
law
that
immortalizedhis
name.
During
the
ensuing
centuries
and in
the Middle
Ages,
the
Roman
law was
eclipsed
n
many
parts
of
Europe.
However,
t
reappeared
t
different
imes
and
in
various
ways,
t
was
modifiedand
reinterpreted,
and
by
the
eighteenth
and
nineteenth
centuries
t
had
acquired
he
profound
appreciation
f
European urists
and
scholars.
Roman
law
was at
one of
the
peaks
of its
prestige
when
the
several
political
uni-
fications
of
Western
Europe
ed
to the
unificationof
the
private
aw
in
the
national
movements
f
codification,
specially
n
France
and
in
Germany.
The essentialcharacteristicsf these legislativecodificationsixed
the
basis
and
determined he
nature
of the
legal
systems
of
which
they
were the
expression.
B.
The common
law
The
common
law,
as
a
legal
system,
is
associated
with
its
origin
and
development
n
England,
where
the
social and
economic
and
political
history
as
well
as the
foundation
of its
law
stem
from
the
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5/18
THE AMERICAN
JOURNAL
OF
COMPARATIVE
AW
feudal
system
and its
incidents. One
aspect
of this
system
was
that
the
settlement
of
disputes
was conducted
on
a
purely
local
level,
each
region acting independentlyand without knowledge of what the
others were
doing.
The
rights
and
obligations
of
individuals
lowed
from
the
nature
of
their
personal
tatuswithin
the
system.
When the
king
sought
to establish
more
mportant
entral
power,
he ran into
seriousconflict
with
the
local authorities.
Nevertheless,
in his
quality
of
sovereign udge
and
sourceof
justice,
and to
discharge
his
responsibility
or the
preservation
f
peace,
he
established
is
own
courts
with
judges
who went
on
circuit
hroughout
he
entire
country.
Even
though
these
were
not
courts
of
generaljurisdiction,
ut
only
competent
n certain
kinds
of
cases,
they
were
not
well receivedat
first. Suffice
t for
presentpurposes
o
say
that the
king's
courts
were
the
victors
n the
ensuing
struggle
for
authority.
By
means
of
their
decisions
hey
created
the first
uniform
rules
and
the first
basis
of
uniformity
n
the
legal
order,
by
establishing
general
norms
which
were common
throughout
he whole
country.
It was
a form
of
gen-
eral
law
or
common
aw
for all
parts
of
the
realm;
hence
the
name,
common
aw.
This
growth
andconsolidationf the court
system
n
England
took
place
chronologically
much
earlier
han the
evolution
of
Parliament.
After the
law-making
unction
of
legislation
had
come
into
its
own
importance,
here
were
stages
during
which
there
was
a
deep
jealousy
on
the
part
of
the courts.
Since
a
parliamentary
nactment
had
to
be
applied
by
the
courts,
each statute
was
by
its
nature
an
encroachment
on
the domain
of
the
common
law
which
embodied
he
protection
of
the
rights
of
the
people.
Whenever
the
legislation
was
directly
applicableo a particular ituation, he courtswereobligedto render
their
decisions
n
accordance
with the
text,
but
whenever
any
question
or
doubt
could
be
raised,
he statute
was
given
a
narrow
nterpretation
so
as
to
minimize
its encroachment
pon
the
common
law
and
to
preserve
maximum
of
authority
n
the
courts.
These
two
historical
conflicts,
and
the
way
in which
they
were
resolved,
provide
considerable
nsight
for an
understanding
f
the
nature
of the
common
aw
as
a
legal
system.
A thirdsubjectwhichshouldbementioneds thedevelopmentf the
system
known
as
equity,
apart
and distinct
from
law
but
sup-
plementary
o
it.
To
make
remedies
available
or harsh
situations,
o
establish
new
procedures,
and
in order
to meet
all sorts
of
new
problems,
ecourse
was
had
to
the
authority
f the
King
in his
sovereign
capacity;
he
delegated
his
function
o an official alled
the
Chancellor
of the
Royal
Court.
In
the
course
of
time,
this became
the Court
of
Chancery,
hrough
which
there
developed
a
substantial
ody
of
col-
422
[Vol.
15
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6/18
DAINOW: CIVIL
LAW
AND THE
COMMON
LAW
lateral and
independent
aw.
Thus,
English
law consisted
at
the
same ime
of
law and
equity.
One canhardlyoverlooknoting the strongresemblanceo Roman
law,
where
the
praetorian
aw
developed
alongside
but
independently
of the
jus
civile.
Furthermore,
he more
recent movement
in
England
and the
United Statesto combine law and
equity may
resemble,
more than
documentation
has thus far
established,
he
definitive
consolidations
which were
eventually
effectuated n
the
Roman
aw.
It is
not
entirely
unreasonable
o consider he
English
development
of equityand its ultimate usionwith law asstages n the evolutionof
English
law
through
which
the Roman
law
passed many
centuries
ago.
The
legal
system
of
the
common
law
is
much
younger,
having
had
only
a
few
hundreds
years
of
existence.
During
the
first
centuries
of
the
history
of
Roman
aw,
the
development
was
equally
pragmatic,
based
on
experience
and
adjustment; here,
also,
the
sourcesof law
were
rather
n
specific
decisions
nd
imperial
decrees
han
in
systematic
compilations
f
legislative
exts. The
first
systematic
xposition
of the
Institutesof
Gaius in the
third
century
in
actualitypresented
he
essence
f
seven
centuries
f
legal
evolution.
The
history
and the
evolutionof
equity
in
English
law
strikingly
resemble
he
development
f
praetorian
ustice
n
Roman
aw.
It
may
very
well
be
asked
whether
the
common aw is
not in
the
process
of
passing
hrough
he
stages
of
development
which
the civil
law
experi-
enced
ong
ago,
and
whether he
future
of the
common
aw
might
not
in
some
measurebe
anticipated
n
the
history
of
the
civil
law.
In
both the
law and
equity
branchesof
the
common
law,
the
established
ody
of
legal
rulescame
essentially
rom
judicial
decisions.
According
to the
declarative
or
customary)
theory,
these
decisions
were
merely
the
concrete
expression
r
evidence
of
the
common
law
which,
so to
speak,
had a
permanent
nd
universal
xistence.
Accord-
ing
to the
creative
or
judicial)
theory,
the
modern
and more
frank
position
is to
recognize
that
the
decided
cases
were
the
very
source
and
the
essence
f
the
law.
II.
LEGISLATION
AND
JUDICIAL
DECISIONS
From
the
foregoing
t
can
be
seen
that
two
vital and
essential
points
of reference
or
a
comparison
f
the
sources
of
positive
law in the
civil
law and
the
common
law are
legislation
nd
judicial
de-
cisions.
To
reverse he
phrase,
n
common-law
hinking
the
distinc-
tion
would
be
case
aw
and
enactedaw. It
is
necessary
o
examine
each
of these
opics
n
the
two
legal
systems.
1967]
423
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THE
AMERICAN
JOURNAL
OF
COMPARATIVE
LAW
A.
Legislation
as the
basis
of
the
civil law
Generally,
n
civil law
jurisdictions
he main source
or basis
of the
law is
legislation,
and
large
areasare codified n a
systematic
manner.
These codes
constitute
a
very
distinctive
eatureof
a Romanist
egal
system,
or the
so-called
civil law.
Although
in
the
form of
statutes
duly
enacted
by
the
proper
legislative
procedure,
hese
codes
are
quite
different
rom
ordinary
tatutes.
A
civil code
is
a book which contains
the laws
that
regulate
the
relationships
etween
ndividuals.
Generally
t contains he
following
topics:persons
and the
family, things
and
ownership,
uccessions
nd
donations,matrimonialpropertyregimes,obligationsand contracts,
civil
responsibility,
ale,
lease,
and
special
contracts,
s well
as
libera-
tive
prescription
statute
of
limitations)
and
acquisitiveprescription
(adverse
possession).
A code is not a list
of
special
rules
for
particular
situations;
it
is,
rather,
a
body
of
general
principles
carefully
ar-
ranged
and
closely
integrated.
A
code
achieves the
highest
level
of
gen-
eralization
based
upon
a
scientific
structure of
classification.
A code
purports
to
be
comprehensive
and to
encompass
the
entire
subject
mat-
ter,
not
in the
details
but
in
the
principles,
and
to
provide
answers
for
questions
which may arise.
The
nature
of
such a
code
naturally
calls for
a liberal
interpretation
in
order that
it
may
serve
as the
basis
of
decision
for new
situations.
The
same
method
of liberal
interpretation
likewise
prevails
for
the
ordinary
statutes
in a
civil
law
jurisdiction.
There'is
a
great
respect
and
high
regard
for
legislation
as the
basic
source
of
the
law.
A
significant
feature
about
legislation
in modern
civil
law
is
the
importance
attached
to
the
preparatory
works
and
the draftsmen's
comments, as well as the parliamentarydiscussionsin connection with
its
initial
formulation.
This is
especially
true
of
the
codes,
and
particularly
during
the
earlier
periods
of their
interpretation.
Thus,
in
France
the
history
of
the
drafts,
the
observations
of the
courts,
the
debates
and
the
changes,
were
indispensable
to the
interpretation
of
the
Code
Napoleon.
B.
Judicial
ecisions
s
the basis
of
the common
aw
Looking at the law in England, the pictureis a totally differentone.
During
the
formative
period
of
English
legal
history,
there
was
no
strong
central
legislative
body,
but
there
were
the
powerful
king's
courts.
When
a
court
decided
a
particular
case,
its
decision
was not
only
the law
for
those
parties,
but had to
be
followed
in future cases
of
the
same
sort,
thereby
becoming
a
part
of the
general
or
common
law.
Thus,
the common
law,
as
a
body
of
law,
consisted
of all
the
424
[Vol.
15
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8/18
1967]
DAINOW:
CIVIL
LAW
AND THE
COMMON
LAW
425
rules
that
could
be
generalized
out
of
judicial
decisions. New
prob-
lems
brought
new
cases,
and
these enriched
he rules of
the
common
law.
Actually,
he
common aw
was conceived
as
being
all-inclusive
nd
complete;
f a
rule had
not
already
been
formulated,
t
was
the
judge's
responsibility
o declare it.
Thus,
judicial
decisionswere both
the
sourceand the
proof
of
the
law,
pronounced
n
connection
with
actual
cases.
What
gave
stability
and
continuity
o
this
system
was
the doctrine
of
precedent.
Once a
point
had
been
decided,
he
same
result
had
to be
reached
or
the
same
problem;
he
judge
was
obliged
to
follow
the earlier
decision,
he
precedent.
However,
since
courts
are
jealous
of their
prerogatives,
he
rule
of
precedent
was
applied
only
to
the
ratio
decidendi
or the
exact
point
which
was
indispensable
nd
necessary
o reach a
decision.
Non-essential
points
were
classifiedas
obiter
icta
nd
werenot
binding.
If a
new
situation
resembled
a
prior
case
but was
not
exactly
the
same,
hen
two
possibilities
were
open
to
the
judge.
If he
felt that
it
would
be
the
socially
desirable
esult
to have
the same
solution,
he
could apply he rule of the earliercase. However,if the judge
felt
the
other
way,
he
could
distinguish
he
previous
decision
and
leave
its
application
imited
to
the
specific
act
situation
which it
con-
trolled.
In
extreme
situations,
a
court could
brand an
earlier
case
as
erroneous nd
overrule
t,
thereby
providing
a
new
precedent
or
the
point
nvolved.
The
first
two of these
techniques,
ollowing
precedent
nd
applying
the
rule,
assured
tability
and
continuity
of
the
law
with
the
corollary
of a
reasonable
protection
of the
parties
nvolved
and
the
security
of
legal
relationships.
he latter wo
techniques,
istinguishing
nd
over-
ruling,
made
room
for
flexibility
and
permittedadjustment
o
new
conditions.
In
the
development
f
the
common
law,
in
short,
the
focal
point
hasbeenthe
judge.
C.
Legislation
n
the
common
aw
Of
course,
there is
also
legislation
n
the
common-law
countries.
The first
striking
featureabout this
legislation
is
that
statutes
are
usually
not
formulated n
terms of
general
principles
but
consist
ratherof
particular
ules
intended
to
control
certain fact
situations
specified
with
considerable
detail.
Recently
there
have
been
some
notable
xceptions,
nd
it
might
be
askedwhether
his is
the
beginning
of a
movement
oward
odification.
In
considering
he
place
of
legislation
n
the
common
law,
it
is
necessary
o
remember he
historical act
that
the
growth
of
Parlia-
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9/18
THE AMERICAN
JOURNAL
OF
COMPARATIVE
AW
ment was
a
popular
expression
o counterbalance
he
power
of
the
king.
For their
part,
the
king
and the
efficient
organization
of
the
king's courts manifesteda jealous and sometimeshostile attitude
towards
Parliamentand its
increasing
power.
The
judges
refusedto
place
any
value on
legislative
history
or
preparatory
orks,
and
they
sought
by
all meansto minimize the
infringement
f their common
law. This resulted
n
the
adoption
of
very
strictmethods
of
statutory
interpretation.
In
turn,
to counteracthese
restrictive
udicial
actics,
he
drafting
of
bills for
legislative
consideration
ecame
an art
in
the
expression
of
succinct
detail in order to
assure
maximum ulfillment
of
the
legisla-
tive ntent n
specific
ituations.
By
way
of
contrast,
n the
system
of
the
civil law
and of codified
aw,
legislationoccupies
he most
highly
respected lace
as
a source
of law.
The
attitude
of
the
courts
is not
only
one
of
liberal
and extensive
interpretation
f texts. Even
in
totally
new
kinds
of
cases,
civil
law
courts
generally
ook
for
a
legislative
ext and
its
underlying
principles
which
they
can
use
in
one
way
or
anotheras
a basis
for
their new
decision.
D.
Judicial
ecisions
n
the
civil
aw
It
is sometimes
aid that
in
civil law
jurisdictions
he function
of
the court
s
merely
to
apply
the
written
aw. This
is
a
very
curtailed
statement,
nd
it would
mean
a
very
narrow
udicial
unction.
Actually,
when a
court
applies
a
law,
it has to
interpret
hat
aw;
in the
process
f
interpretation
he court
may
well
extend
the
scope
of
the
law
con-
siderably
beyond
that
originally
contemplated.
By
this method
of
interpretationnd by filling in gaps wherethe writtenlaw is silent
or
insufficient,
he
civil law
court
can
be
considered
s
making
aw,
interstitially.
In this
manner,
he
utilization
of
prior
decisions
s
mainly
on
points
of
interpretation
f
the
written
exts,
whereas
n
the common
aw,
the
decisions
are
themselves
he
source
of
law
and make
aw
from
the
whole
cloth,
as
it were.
In the
civil
law
system,
courts
are
not
bound
to follow
previous
judicial
decisions.
Each
new
decision
must
be
grounded
on
the
authority
f the
legislative
ext which
provides
he basisof continuity
and
stability.
This
does not
preclude
he
same result
in
a
later
case,
because
he
same
text
and the
same
reasons
eadto the same
conclusion.
However,
there
is no
binding
rule
of
precedent;
each
case must
be
decided
on
the
primary
authority
of
legislation,
and
the reasons
or
the
decision
must
be stated.
A court
may
not render
a
judgment
n
the
nature
of
a
general
ule.
In some
countries
ike
France
and
Belgium,
the
practice
has
been
426
[Vol.
15
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10/18
DAINOW:
CIVIL LAW
AND THE
COMMON
LAW
consolidated hat when a certain
point
has been
consistently
decided
in
the
same
way by
an
appreciable
number
of
cases,
it becomes
jurisprudenceonstante nd is consideredbindingin futurecases.
This serves
o stabilize he
interpretation
f the
law.
In
addition,
after a
second
cassation
judgment
of lower
court
annulled and case
remanded
for
retrial)
by
the
highest
court
of
appeal
n
these
two
countries,
he
lower
tribunal
s
obliged
to
accept
the
solution
ndicated.
There
is
also
an
increasing
endencyamong attorneys
o cite
cases
as
well
as codes
and
other
egislative
exts.
Finally,
for
some
topics
there
are
very
few
legislativeprovisions,for
example,
n
France,
n
connection
with the
civil
responsibility
or
delicts
and
quasi-delicts.Thus,
the
elaboration
f
more detailed
rules
is
necessarily
elegated
o
judicial
decisions
n
particular
ases.
E.
Comparative
omments
In
comparative
tudies
of civil law
and
common
aw,
it is
sometimes
concludedon the
basis
of
the
foregoing
observations
hat
the
net
result s approximatelyhe samein both systems.In effect,while the
common
law
startswith a
case-law
basis
it
also
includes
legislative
encroachments,
nd
while the
civil
law starts
with a
legislative
basis,
it
incorporates
evelopments
f
case-law.
While
this
is
a correct
tate-
ment,
t
is
fraught
with
the
errorsand
pitfalls
of
partial
ruth.
As sources
of
positive
law,
legislation
and
judicial
decisions
have
their
place
in
both
systems,
but their
relative
importance
s
very
different.
It is
not
conducive
o an
understanding
f
the
civil
law
and the
common
aw to
say
that
the
difference
s
merely
one
of
degree.
Despite hefactthatlegislationnfiltratesnto the common
aw,
and
regardless
of
the
increasing
importance
of
judicial
decisions
in a
civil
law
country,
the
fundamental
difference
n
the
nature
of the
two
systems
continues
o
express
tself
in
many
other
ways.
The
stat-
utes in
England
and
judicial
aw-making
n
France
have
not
brought
about
any change
in the
classification
f
the
respective
egal
systems.
On
the
contrary,
he
importance
of
the
difference
between
the
civil
law and
common law
is
confirmed
by
an
examination
n
the
two
systemsof their doctrinalmaterials, egal educationand modes of
research,
as well
as in
the
organization
and
functioning
of
their
judicial
ystems.
III.
DOCTRINAL
MATERIALS,
LEGAL
EDUCATION
AND
RESEARCH
As
a
result
of
the
relative
importance
of
legislation
and
judicial
decisions n the civil
law,
on the one
hand,
and
in
the
common
law,
on the
other,
there
follow
a
number
of
other
essential
consequences,
1%7]
427
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11/18
THE AMERICAN
JOURNAL
OF
COMPARATIVE
LAW
among
which must be
mentioned he nature
and
place
of
doctrinal
materials,
egal
education
ndresearch.
A.
Doctrinalmaterials
In
civil
law
countries,
he
treatises
nd
commentaries
f
legal
writers
are
generally
expressed
n
the
form
of
systematic
xpositions
and
in
discussions bout
broad
egal
principles.
These works
formulate
gen-
eral theories
about
the basic codes
and
legislation,
n relationto
the
evolution f the
legalsystem
as
a
whole.
In
common-law
ountries,
here
s
not
as
large
a
quantity
of
doctrinal
writings,and these are likely to consistof analysesof decidedcases
with
the
object
of
classifying
hem and
distinguishing
he rules
they
represent.
The evolution
of the law is
traced
by
means of individual
points
progressively
stablished
n
a
seriesof
judicial
decisions.
The
purpose
of
these
doctrinal
writings
is thus
to
compile
the decided
cases,
and then to establish
and evaluate heir
distilled essence.
The
casesare classifiedand
arranged
n a
manner
which
will
show
up
the
evolution
of
the
law.
As
authorities
n
their
pleadings
and in
their
judgments,
he
attorneys
and
the
judges primarily
ite
previous
cases
rather han
worksof
doctrine.
In
the
civil
law,
the doctrine
s
an inherent
part
of
the
system
and
is
indispensable
o
a
systematic
and
analytical
understanding
f
it.
The
doctrine
s not
a
recognized
ource
of
law,
but
it has
exercised
a
great
nfluence
n the
development
f
the law.
It molds the
minds
of
students,
t
gives
direction
o the
work
of
the
practitioners
nd to
the
deliberations
of
the
judges,
and it
guides
the
legislators
towards
consistency
and
systematization.
B.
Legal
education
There
is
naturally
a
direct
reciprocal
nfluencebetween
the nature
of
a
legal system
and
the
pattern
of
legal
education.
The
nature
of
the former
promotes
he method
of
the
latter,
which
in
turn
per-
petuates
he
original
character
f the
system.
The
program
of
law
studies
and
the method
of
legal
education
stablish
and fix the
funda-
mental
understanding
nd the
mode
of
thought
which condition
the
individualorhisentireprofessionalareer.
Legal
education
or the civil law
is
centeredon
legislation,
odifica-
tion
and
doctrine,
n a
veryhigh
level
of
abstraction.
The
greatrespect
for
legislation
s
basic
to the
judge's
approach
ven when
he
uses
a
statute
as
his
startingpoint
for
a
liberal
nterpretation
f
it.
In
contrast,
egal
education or the
common
aw is founded
on
the
primacy
of
the
decided
cases;
it
emphasizes
he
important
role
of
the
king's
courts n
the
development
and unification
of
law,
and it
428
[Vol.
15
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12/18
DAINOW: CIVIL LAW AND THE COMMON
LAW
inclines
toward
a
strict
nterpretation
f statutesn orderto
minimize
the
legislative
ncroachmentn the
judicial
prerogative.
Thus, the greatnames of the civil law arethe names of professors
who wrotethe treatises
nd created he
doctrine,
.g.,
Bartolus,
Domat,
Pothier,
Savigny, Ihering,
Planiol,
Capitant,
Laurent
and
Depage.
By
contrast,
he
heroesof
the
common aw
are
the
outstanding udges
who contributed
most to its
development,
ike
Coke,
Hardwicke,
Mansfield,Marshall,
tory,
Holmesand Brandeis.
In
England,
the
training
of
young
jurists
was
long
considered o
be
a
function and
responsibility
f
the
practicing
bar;
the Inns
of
Court
still provide an indispensablestage in the preparationof
barristers.The
university
ole
in
legal
education
s
relatively
recent.
On the
Continent,
he
study
of
law was
always
a
part
of the
higher
educationof the
universities.
In
the United
States,
legal
education
has
been
established s a
program
of
university
nstruction,
nd there
has
also been
a
growing recognition
of the
doctrinal
writings
of
outstanding
aw
professors.
In the
specific
courses
of
study
n
England
and
in the
United
States,
the
law
student
inds
himself
engaged
n
the
discussion f actualand
hypotheticalpracticalproblems.He learnsvery carefullythe cases
which
have
acquired
great
importance,
and he
develops
a
skill
in
analyzing udicial
decisions n
order
o
identify
the
narrow
holding
of
a
judgment
which
is entitled to
the
application
of stare
decisis
as
a
precedent,
while
at
the
same
time
learning
to
distinguish
t
from
other
cases.
In
civil
law
countries,
he
student
startshis
study
with codes
and
textbooks. He
learns about
the
Justinian
codifications
nd their in-
fluenceon hispresent-dayegalsystem.He is taughtgeneralprinciples
and
how
to
think in
abstractions.
t becomes
part
of his
being
to
appreciate
lassification
nd
co-ordination
f
subject
matter,
and
to
take
for
granted
a
comprehensiveness
f the
law
as
systematic
nd a
whole. It is
only
recently
n
countries
ike
France
and
Belgium
that
the
law
studenthas been
required
o read
some
decided
cases,
and he
usually
attaches
only
secondary
mportance
o the
judicial
decisions.
He
concentrates n the
codes,
he
treatises,
nd the
notes
taken
during
the formal
ectures
y
his
professors.
Of course,the common-lawstudentdoes not
completely ignore
law
books
of
general
import
and
philosophical peculation.
At the
same
time,
the
civil
law
student
now has occasion
o
come
to
know
and
to
appreciate
ertain
udicial
decisions,
specially
n
the
new
pro-
grams
of
travaux
pratiques,
which often include
the
study
and
dis-
cussion
of actual cases and
practical
problems.
Nevertheless,
t is
necessary
o
recognize
that
the
training
and
formation
of the
law
studentare
inevitablypredicated pon
the
natureof the
legal system.
1967]
429
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THE AMERICAN
JOURNAL
OF
COMPARATIVE
AW
Thus,
we
return
to
the
original
affirmation
hat
judicial
decisions
determine he natureof
the
common law
system,
while
legislation
s
the basiccharacteristicf the civil aw.
C. Research
The
same
affirmation an
be made
in
connectionwith
the methods
of
legal
research. In
the
civil law
system,
inquiry
usually begins
with
the codesand other
egislation,
hen
it
seeksout
the
commentators
and
the
treatises,
nd
only
in
third
place
do cases
come
in
for
con-
sideration
nd evaluation.
Furthermore,
ithout
the
rule
of
precedent
and the principleof staredecisis,prior udicialdecisionsare not neces-
sarily accepted
as
weighty
authorities.
Actually,
each new
decision
rests
primarily
n the
original
ode
or
legislative
ext.
In the common
aw,
as
such,
research
s focused
essentially
n
prior
judicial
decisions,
as a result of the
very
nature of
the
system.
Of
course,
egislation
s
controlling
where
applicable,
and
it
has to
be
examined o
determine
questions
of
applicability,
ut
here
again
the
judicial
interpretations
ecome the
binding
authority
whereas n
the
civil law tradition, achcase is related
back
essentially
o
the
legisla-
tive
authority.
Neither
in the civil
law nor in the common
law
is
the
indicated
method
of
research n
exclusiveone.
However,
n each
system
there
is
a basic
approach
and method
of
thought
that is
distinctive n
its
emphasis.
IV.
JUDGES
AND COURTS
The differencesn the natureof the legal systemsof the civil law
and
the
common
law
also
manifest
themselveswith
referenceto
their
respective
udges
and courts.
Of
course,
he essential
objective
s
everywhere
he
same:
to answer
questions
of
law
and to resolve
disputes.
However,
n order
to
understand
he two
systems
properly,
there
are
disparities
which
must
be
recognized
and evaluated.
For
more
specific
dentification
f
ideas,
t
is
useful to consider
ive
points
of reference:
he
training
and recruitment
f
judges,
the method
of
arriving
at
decisions,
the
personalization
f
opinions
or the
col-
legiality
of
judgments,
he mannerof
writing opinions,
and the at-
titude
of the
judge
in case of
silence and
insufficiency
f the written
or established
aw.
A.
The
training
ndrecruitment
f
judges
The
training
and
the
recruitment
f
judges
and the
natureof
their
tenure
are
very important
factors
in
determining
their
modes
of
430
[Vol.
15
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14/18
1967]
DAINOW: CIVIL
LAW
AND
THE
COMMON
LAW
431
thought,
their
methods
of work and
the
ways
in
which
they
decide
cases.
In the common-lawcountries, here is no particular rainingfor
judges
apart
from the
fact that
it
is
necessary
o
be an
attorney
or
barrister
with
a number
of
years
of
experience
nd
reputation.
After
having
succeeded
as
a
practitioner,
ne
is
either
appointed
by
the
government,
as in
England,
or
elected
by
the
people,
as in
many
American tates. The
background
f his
experience
n
practice
ondi-
tions his
mode of
thought
and
his method
of
work in
discharging
is
responsibilities
s
a
member
of the court. In
a
legal system
based
essentially
on
decided
cases,
the
judges
must
necessarily
be
practical,and the elevationof a memberof the bar to a seat on the benchis
the
perfectly
natural
procedure.
t is
to be
expected
hat their
manner
of
thinking,
working
and
deciding legal
questions
should be a
con-
tinuationof
what it
was
when
they
were
attorneys
nd
barristers.
In
certain
ivil law
countriesike
France,
here
s a
greater
difference
between he
judicial
unctionand
the
practice
f
law. The
lawyer
and
the
judge
both
have the
same
legal
education
at the
university
evel;
after
that,
however,
each
individual
must
make
his
choice of
career,
and goes into the practicalapprenticeshiprainingfor the branchof
the
legal
profession
he has
selected.
Going
directly
from
law
study
into a
judicial
association,
he
future
judge
approaches
he
law
pri-
marily
through
the
theoretical
ducationwhich
he
has
received. He
finds
himself
with
other
people
who
envision
he
law in the
same
way
as he
does,
that
is,
as
a
comprehensive
ody
of
legal
principles
co-
ordinated t a
high
level
of
generalization
nd
abstraction.
B.
The
method
ofdeciding
ases
For their
point
of
departure,
ivil
law
judges
search
he
legislation
for
the
controlling
principle
and the
rules
which
govern
the
subject;
this
principle
or rule is
then
applied
or
interpreted
ccording
o the
particular
acts of
the
case in
dispute.
The
reasoning
process
s
to
go
fromthe
general
principle
o the
special
ase.
On
the
contrary,
common-law
udges
search
in the
previous
de-
cisions
for a
similar
case,
and
are
guided
accordingly.
If a
statute
is
involvedand
the text
is
clear,
he
judge
abides
by
its
provisions;
ut
if doubtor
ambiguity
can avoid the statute's
applicability,
here is
again
resort
o a
search
of
previous
decisions or
common-law
uthority
as
a
basisof
decision.
From another
point
of
view,
it can
be
said
that
in
a
common-law
ountry
he
judge
must
give
effectto
a
clearly-stated
statutory
ule,
while the
judge
in
a
civil law
country
s.sometimes
given
wide
discretionary
owers
hrough
broadly
tated
egislation.
Another
point
of
interest
s
that
the
common-law
ury
trial
in
civil
cases
left
the
determination f
facts
to
the
jury,
so
that the
judicial
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15/18
THE AMERICAN
JOURNAL
OF
COMPARATIVE
LAW
technique
of
reducing
he
power
of the
jury
was to broaden
he
scope
of
matters f
law which
fell
within
the
judge's
power.
In
the civil
law, a juryin civil cases s eitherveryrareor nonexistent,o that the
judge
s in
complete
ontrolof
all
phases
of the
trial.
All
this does not
prevent
the
common-law
udge
from
discussing
general
principles
nor the civil law
judge
from
taking
cases nto con-
sideration.
However,
they
do so with
a
difference
n
point
of
view
and in
method
that is
very significant
even
in
situations
which
bear
substantial
esemblanceo
one
another.
C. The
personal
r collective haracter
f
decisions
In the continental
countries,
udges
enjoy
a desirable
prestige
and
security,
but
their
emoluments
are
perhaps
more
modest
than
else-
where.
By
reason
of
the usual
collegial system
of
their
organization
and
procedure,
he
judges always
remain
anonymous;
consequently,
the
bench
does
not attract
he
strongest
personalities
f
the
profession.
In
England,
Canada,
he
United
States,
and
other
countries
of
the
common
aw,
opinions
are
identified
with
their
judicial
authors;
here
can be
dissenting
or
concurringopinions,
and
each
judge
has
the
possibility
of
setting
forth his own
point
of
view.
In this
manner,
the
personality
f
a
great jurist
makes
tself
felt
and
appreciated,
nd
such
a
person
makes
a substantial ontribution
o the
development
of thelaw.
D. The
manner
of
writingopinions
nddecisions
When it
comes
to
the
writing
of
judicial opinions
and
decisions
in the two systems, he difference s very striking. In the common
law,
there is
first a
more or less
organized exposition
of
all the
facts
that
led
to the
controversy
nd
that
furnish
the
base for
the
analysis
of
the
legal problem.
Then
an examination
s made of
the
previous
cases
which
resemble
he
present
one,
especially
hose
cases
which
have
been
cited
by
the
parties
n the
litigation.
All these
have
to be
analyzed
nd
evaluated
n
order
o
determinewhich
are
analogous
to
the
case
in hand
and
which
are
to
be
distinguished.
Finally,
the
court
decides
which
precedents
re
in
point,
and
it
is
on
the
basis
of
theirauthorityhatthe newdecision sgrounded.
In
the civil
law,
decisions
are
much
shorter;
t would
seem
that
the
higher
the
court
in
the
judicial
hierarchy,
he
shorter
ts
judgment.
A
meager
outline
of the
essentially
relevant
facts
is
followed
by
a
succinct
tatement
f
the
applicable
principles
and rules of
law;
then
there
is
the
conclusion
which results rom
the
application
f
the
law
to
the facts
of the
particular
ase.
There
is a strict
prohibition
gainst
the rendition
of a
judgment
n the form of
a
general
ruling.
Thus,
it
432
[Vol.
15
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16/18
DAINOW:
CIVIL LAW
AND THE COMMON LAW
is
evident
how much the mannerof
writing
opinions
reflects
he
basic
mode
of
thought
for
legal problems
and for
their
solution.
Again, while the respective udges have differentapproachesn
the selectionof relevant
authorities,
t
would not
be
correct o
leave
the
impression
f
a
complete
differentiation
etweenthe two
systems.
On the
one
hand,
the court
reports
of the common
aw
may
well con-
tain
important
discussion and
substantial
development
of
general
principles.
On the
other
hand,
in
civil law
countries,
he
record
iles
of the
judge
or
of
the Minist?rePublic
often
contain all
the details
and the facts
of
the
dispute.
Nevertheless,
s
already
noted in other
contexts,
the
point
of
departure
and the
method of
approach
are
altogether
different,
again
reflecting
he difference n the nature of
the
two
legalsystems.
E. Silence or
insufficiency
of
the written
or
established aw
Another
mportant
tem of
difference
etween
he
common
aw and
the
civil
law is found in the
attitude
of the
judge
in
the event
of the
silence
or
insufficiency
f the
writtenor
established
aw,
the
unprovided-
for case.
This
doesnot
present nyproblem
or
the
common-law
udge;he is then
entirely
within his field if he finds or makesthe ruleof de-
cision.
By
contrast,
or
him the
difficulty
rises
when there
s a
pertinent
legislative
ext not
to
his
liking;
the
challenge
then
is to
restrict
he
scope
of its
application.
On
the other
hand,
by
reasonof the
legislative
basis
of
the civil
law,
the
judge
in
this
system
finds himself in
an
embarrassing
ituation
when
the written aw is silent or
insufficient n
an
essential ssue.
The
judge
cannot refuse to
adjudicate
nder
penalty
of
being
guilty
of a
denialof justice.Thevarious ivillaw countries aveadopteddifferent
formulas o
guide
and
instruct
he
judges
in
this
respect.
Article
1
of
the Swiss
Civil
Code
authorizes he
judge
to render
he
decisionwhich
he would
make
if he
were
legislator;
n
France
and in
Belgium,
he is
given
only
the
instruction
o
adjudicate.
Article 21
of the
Louisiana
Civil Code
ndicates hat
the
judge
must decide
equitably
according
o
natural
aw
and reasonor
accepted
usage.
In
Germany,
he
tradition s
that
the
judge
must fill
gaps
in the
written
law;
one
way
of
doing
this is
to
make
use
of
customary
aw as
a
sourceof
law,
or
else to
resort
to
general
principles.
Whatever
he
explanation
iven (to
fill
in
gaps
or to
effectuate he
presumed
ntent
of the
parties),
or the
technique
used
(interpretation
or
analogy,
recourse
o
custom
or
general
principles),
the
civil
law
judges
are not
always
limited to a
mere
application
of the
law;
in
effect
they
are
obliged
to
make law. Does
this
not then
have
the
effect of
eliminating
he
important
distinctionbetween
the
common law
and
the
civil
aw?
1967]
433
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17/18
THE
AMERICAN
JOURNAL
OF
COMPARATIVE
AW
The
answermust
be
in the
negativel
n the
first
place,
n a
Romanist
legal system,
he
written aw is
the
supreme
ource
of
law;
it is
only
in
the case of silenceor insufficiencyf the written aw that the judgeis
obliged
to
be
creative.
This
mode
of
judicial
legislation
by
the
civil
law
courts
represents nly
the
exception,only
a
very
small
fraction
of
the
totality
of
the
law;
whereas,
n the
common-law
ountries,
he
principal
mass
and all
the
residuary
reas
of the law are
what
is
called
judge-made
aw
because he essential
ourceof this law
is
in
the
de-
cidedcases.
In
the
second
place,
he
common-law
udge
directly
creates he rules
of
law;
this is the
significantaspect
of his
function
and of
his official
authority.
When a civil law
judge
establishesew rulesof
law,
he does
so either
by
virtue
of
an
exceptional
egislative
delegation
or
in
most
instances
by
virtue
of
his
power
of
interpretation
f the
legislative
text.
In
this
latter
case,
t is still in
the written aw
that
he seeks
the
applicable
eneral
principles
r the basesof
a
reasoningby
analogy.
In the
third
place,
the
system
and
the
character f
completeness
f
the
codes
in
civil
law countries
seriously
restrict
the
scope
of
this
judicial
unction.
Finally, n the extentto which it is exercised,hiscreative unction
of the
judicial
authority
emains
marginal
and insufficient o
change
the nature f
the
legal
system.
In
summary,
he
history,
he sources
and the
natureof its
develop-
ment
are
never
effaced rom
a
well-established
egal system.
CONCLUSION
Even
though
t
be
admitted hat
the
civil
law
and
the
common
aw
started romoppositeextremes,t is sometimes aidthatas a resultof
the
movements
ach has
made in the
direction
of the
other,
there is
no
longer
much differencebetween hem.
The
same social
needs,
and
similar
economic
and
technical
onditions,
ave
led
to
the
adoption
of
similar
solutions
or their
legal
problems.
f it
is true
that
the
results
are
so
closeto
each
other,
he methodsused
to reach hem
are
neverthe-
less
extremely
divergent,
and the matter s not
that
simple.
Conversely,
eitherwould
it
be
correct o
say
that there
has been no
rapprochement
etween
these
two
greatsystems.
The
place
and func-
tionof
legislation
nd
judicial
decisionsn thecivil
law,
on theone
side,
and
in the
common
aw,
on
the
other,
are
not
so
strictas
to
be
mutually
exclusive.
Each
system possesses
trong
characteristics
f a
distinct and
com-
prehensive
nature
that establish ts own
individuality.
This
does not
prevent
a
country
having
one of these
egal
systems
rom
borrowing
r
incorporating
ome
of
the
traditionaleaturesof
the
other.
However,
when this
happens,
he extent of
incorporation
s
relatively
o
slight
434
[Vol.
15
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18/18
DAINOW: CIVIL
LAW
AND THE COMMON LAW
that it does not
have the effect of
altering
he
fundamentalnature
of
the
system,
which remains
n
the
final
analysis
what
it
has
always
been.
The matterof mixed urisdictions, heremajorareasof bothcivil
law
and common aw have come
together
nto
a
living
continuity,
s in
Louisiana,
Quebec
and
Scotland,
s
another
topic
and
one of
great
interest.
However,
t
is
much
too extensive or
more
than meremention
at
this
time.
It is
apparent
hat
the
purpose
of
these commentshas
not been to
reach
a relative
evaluation
f
these
two
great
egal
systems.
n
its
own
ethnic
and historical
framework,
each
system
has served
well the
society
n
which it
functions;
achhas demonstrated
ts
ability
o
satisfy
the social
and
economic
needs of a
society
n
constant
change.
Each
has
also
maintaineda
balancebetween
the elementsof
flexibility
and
adaptation,
n the one
hand,
while
assuring
he
essential
attributes f
stability
nd
security,
n
the
other.
In
every
country, legal system
s
a
part
of the life and the
culture
of
the
people
or
whose
needs
t has
developed.
ts
evolution,
ncluding
ts
susceptibility
o outside
nfluences,
annot
be
dissociatedrom its
own
characteristics.his should
never
be lost
from
sight;
this
is
what
makes
for the usefulness f comparativetudy n a worldwhere nternational
relations
and
activitiesare
taking
an
increasingly mportantplace.
1967]
435