Common Law vs. Civil Law – Prof. Holger Spamann (Harvard)

Summary

In this engaging discussion, Professor August Paman explores the complexities of common and civil law systems with PhD candidate Alessandro Taconelli. They examine the historical origins and definitions of these legal frameworks, questioning the validity of traditional distinctions. The conversation highlights research findings that suggest judges from both systems may not think as differently as commonly believed, particularly regarding the influence of precedent on decisions. Ultimately, they argue for a nuanced understanding of legal families, acknowledging shared traits while cautioning against oversimplified claims about legal thought.

Takeaways

• 😀 Common law systems rely on judicial precedents, while civil law systems are based on statutes enacted by legislatures.
• 😀 The historical origins of these systems stem from different legal traditions: common law from England and civil law from Roman law.
• 😀 There is ongoing debate about whether common law and civil law practitioners think differently; research shows complexities in these claims.
• 😀 A study involving judges from various jurisdictions found that while individual legal systems differ, the distinction between common and civil law may not be as profound as assumed.
• 😀 Precedent does not have a significant causal effect on judicial decisions in common law jurisdictions, challenging traditional views.
• 😀 Published judicial opinions may not accurately reflect judges' internal reasoning processes but are still vital for legal practitioners.
• 😀 Historical differences in citation practices between English and German courts have diminished, with both now citing literature more frequently.
• 😀 The notion of a distinct judicial culture between common law and civil law systems requires further empirical study to validate.
• 😀 Practical implications of these findings suggest that understanding the terminology of legal systems is crucial for international legal work.
• 😀 The common-civil law distinction remains a useful framework, but deeper assumptions about legal reasoning need careful examination.

Q & A

What are the fundamental differences between common law and civil law systems?

Common law, practiced mainly in England and the U.S., is based on judicial precedents, whereas civil law, predominant in Continental Europe, relies on statutes and legislative texts.

How did the terms 'common law' and 'civil law' originate?

The terms arose from distinct historical developments in England and the European continent, leading to the formation of different legal traditions.

What was the primary focus of Professor Paman's research?

Professor Paman's research examined whether civil and common law lawyers think differently and whether judges' decisions are influenced by precedent.

What were the key findings regarding judges' reliance on precedent?

The study found that judges' decisions were minimally influenced by precedent, particularly in common law jurisdictions, challenging the traditional narrative.

How do the citation practices of English and German courts compare?

The study indicated that English and German courts were not as different in their citation practices during the 19th century as commonly believed, with both using precedent significantly.

Did the research find evidence of convergence between common law and civil law systems?

No, the research concluded that while some similarities exist, the distinct characteristics of common law and civil law systems have persisted over time.

What implications do the findings have for understanding global legal systems?

The findings suggest that while the common and civil law distinction is a useful framework, the deeper claims about fundamental differences in legal thinking may be unfounded.

What historical texts influenced the development of civil law in Europe?

The Corpus Juris Civilis, compiled in the 6th century by Emperor Justinian, significantly influenced the development of civil law in Europe after its rediscovery in the 12th century.

How do legal practitioners perceive the common and civil law distinction?

Legal practitioners find the distinction useful for navigating different jurisdictions, particularly in terms of familiar terminology, though they may face deeper functional differences.

What future research directions does Professor Paman suggest?

Professor Paman emphasizes the need for further empirical studies to substantiate or refute claims about differences in legal thinking between common and civil law practitioners.