Currently, a number of societies around the world are reforming their legal systems, often after overcoming years of oppression. Two transatlantic models, civil law and common law, will have a major impact on these reforms. On the one hand, the two basic models already cover more than 70 per cent of the world`s population in about 62 per cent of existing legal systems. In addition, the westernisation of a legal system will bring many practical and economic benefits, which necessarily implies integrating at least some aspects of one or both transatlantic models. The key is to extract the best features from the models and adapt them to the specific legal culture. In particular, the civil law approach to judicial structuring has much to recommend. A dominant feature of the civil law model is the responsibility it confers on the judge in resolving disputes. It is true that common law judges have more power in the sense that they can develop the law from precedents, whereas civilian judges do not. However, the civil judge dominates individual disputes and, therefore, good dispute resolution depends on the quality of his judges and their ability to perform their duties to the best of their ability. Therefore, lessons learned from civil justice must be given special attention when reforming a legal system. I recognize the potential for judge-centred reform, and here I examine the lessons that can be drawn from the civil law approach as an « outsider » familiar with the American version of the common law model. My intention is simply to look at the benefits of civil justice, not to advocate the adoption of the whole model. In fact, as is discussed throughout the document, the United States.
The common law system has incorporated some of these concepts into its administrative process. The civil law approach could help an emerging legal culture improve the quality of its justice system and provide it with better tools to play an active role in dispute resolution. My analysis below deals separately with these two objectives of civil justice. In civil law, incorporation is usually based on one or more codes that apply to specific areas such as tax law, corporate law or administrative law. These doctrines prohibit or significantly restrict a target company and its subsidiaries from providing guarantees (upstream and downstream) or guarantees in connection with the acquisition of the target`s shares, which is particularly important for PPPs where the private sector participates in a public service (joint venture) and/or privatisations. Other civil law countries such as OHADA countries (Article 639 of the Uniform Law on Commercial Companies) and Algeria (Articles 715 to 60 of the Commercial Code) have similar concepts. There is usually a written constitution based on certain codes (e.g. Civil Code, Company Law, Administrative Law, Tax Law and Constitutional Law) that enshrine fundamental rights and obligations. However, administrative law tends to be less codified and administrative judges tend to behave more like common law judges. The civil law system has many advantages: the main advantage is that cases usually take less time. I do not know, it seems that judges in common law countries are quite free to throw precedents out the window if they think they should.
Similarly, I know nothing about Europe, but I do know that here in Louisiana we have a system of stare decisis that has been more or less grafted so that the civilian system can absorb it. Maybe it`s just an aberration and not the norm, in this case I think this comment and others made me change my mind. I am willing to discuss the pros and cons of different mixtures of civil and customary law, and what might be the ideal mix of the two (assuming you don`t all convince me that the common law is better). I will still assign deltas for convincing myself that the mix is better than a pure civil justice system, although I don`t particularly care about mixing at this time. The gap between the common law and the civil law tradition is the greatest mystery of the transnational jurist, the greatest source of consternation, if not the greatest obstacle to the fair and equitable settlement of disputes in world trade. And it doesn`t go away. Therefore, at least a basic understanding of the differences is crucial. Call it the super simplified version of Cliff`s Notes of Comparative Law if you haven`t had the opportunity to take the course in law school. Of course, « civil law » in this context should not be confused with the notion of civil actions in the United States. The Napoleonic system works both in criminal law and in what we would call « civil » litigation. Freedom of contract is very extensive in common law countries, i.e. very few or no provisions are lawfully contained in contracts.
Roman law countries, on the other hand, have a more sophisticated contractual model with legal provisions. Ultimately, civil and common traditions are really two ways of achieving the same goal, or at least two ways of pursuing the same goal. The most glaring differences are procedural. Once understood and considered, disputes can be resolved with fewer headaches and sorrows. Despite the predominance of the common law system in the United States, it is important to understand the civil law system – as many foreign legal systems are based on civil law. Courts and judges are not controlled or dominated by partisan ideology or politics compared to their counterparts in the Legislative Assembly. For this reason, unpopular or controversial legislative reforms can be implemented by the courts, even if those same reforms would sabotage or harm the chances of re-election if implemented by parliament. For example, abortion is permitted under common law in three states, but the legislatures of those states have refused to legislate on the issue. Common law systems have helped to facilitate and accelerate the country`s economic growth by providing economic actors with an effective rule of law. First, the law generally grants less discretion to the judiciary than a common law system.
As a result, a law drafted with the best of intentions sometimes leads to an unfair result because the legislator has not properly anticipated discrete scenarios. Of course, society is complex and much happens outside the realm of reasonable anticipation, and so sometimes a civil judge is forced to make an unfair but « legal » conclusion. While the civil justice system has remedies to remedy the situation, it is still a weakness that the common law learns less. A common law judge ultimately makes the decision that he or she believes best reflects the facts. The precedents are indicative, but generally non-binding. This means that a common law has only greater leeway to ensure that justice is done in each case, as this case requires. My reservation on this first point is the requirement that the common law judge be properly trained and of good character. I believe that a civil law system, such as that found in Germany, France, Spain, etc., is better than the common law systems, for example, of Great Britain in several important respects: the United States, Canada, England, India and Australia are generally regarded as common law countries. As they were all subjects or colonies of Great Britain, they often maintained the tradition of the common law.
The state of Louisiana in the United States uses bijural civil law because it was once a colony of the France. The interpretation of the court becomes the common law in that jurisdiction. In this way, the court develops customary law that applies alongside the law. In some civil law systems, e.g. Germany, the writings of jurists have a considerable influence on the courts; Accessibility: A civil law system is much more accessible to the general public than a common law system. It takes an expert to keep track of all the precedents that replace them and determine what is really important at that time. On the other hand, a civil law system has all the applicable laws and regulations (assuming you have the time and inclination to consult them), so a generally educated person can understand which rules apply. In civil law countries, judges are often referred to as « investigators ». They usually take the lead in laying charges, establishing facts by questioning witnesses and applying remedies contained in legal texts. Although not a rule, common law countries do not always follow a constitution or a code of law. For the sake of argument, I would prefer to discuss what might be called the « purist » versions of each system, rather than the myriad of hybrids that exist.