Text 2 Civil law and common law
Text 1 Why legal history is important
Some aspects oflaw cannot be understood except through its history. For instance, in the British constitution the House of Lords is part of the legislature. It is also the highest court of appeal. Why should this be?
No one devising a constitution today would choose to confer these powers on the House of Lords. In a democracy, legislators should represent the population as a whole. It should not, like the House of Lords, consist of aristocrats and people appointed for life by the government. Judges should not be part of the legislature. If they are, they are not truly independent.
The House of Lords has this strange combination of powers because the modern House of Lords is the heir of the mediaeval magnates. In the fourteenth century these magnates or peers obtained the right to be summoned to Parliament and to correct errors made by the ordinary courts of law. Their successors have kept these powers in a changed form, though they no longer reflect the balance of forces in Britain.
To explain the powers of the House of Lords historically is not to justify its place in the British constitution today. But the explanation helps to show how law evolves, or fails to evolve. A law for which there was originally a good reason can survive though that reason has vanished. Of course if laws are totally unsuited to new conditions they go under. In western countries the laws that treated women as inferior to men in voting, holding public office, making family decisions, owning property and earning money have over the last century almost vanished. The law has both reflected and helped to further this emancipation.
The House of Lords illustrates the other side of the coin. It does some useful work by amending badly thought-out bills, and has not thwarted the elected legislators in the House of Commons enough to make its abolition a priority. So up to now the House of Lords has survived. Its survival is an example of how laws (in this case a significant part of the constitution) can survive though they no longer serve their original purpose. The survival of laws has something in common with the survival of genes.
Unlike genes, laws are determined by our culture. We can change them. So why do ill-adapted laws often survive? One reason, apart from inertia, is that law aims to provide security, psychological as well as physical. One element in security is being able to know, and feel comfortable with, the formal rules that govern our society and our lives.
So continuity is important, and tells in favour of leaving laws as they are unless they prove utterly unworkable. It also explains why in all systems of law the previous decisions of courts are regularly followed when similar cases come up in the future. If it has once been decided that an elephant is a dangerous animal that decision is likely to be followed, though not all elephants are actually dangerous.
Precedents, as they are called, are important even when they are not formally binding. Not only ordinary people but judges, ministers and civil servants feel more at ease and less open to criticism if they follow past practice, unless there is a strongcase for changing it. Justice also requires like cases to be treated alike. So it is not only the laws, but their interpretation, that tends to remain the same.
For historical reasons the laws of different countries can differ sharply. In particular there are differences between the civil law systems of continental Europe, South America and most of Asia and the common law systems of the English-speaking world.
Text 2 Civil law and common law
One important theme is the relation between custom, writing and codes. In civil lawsystems the main branches of the law are embodied in written codes,which try to be comprehensive and clear. There are codes of criminal law, of criminal procedure, of private law, of commercial law, and perhaps others.
The codes are meant to contain the main principles of each branch of the law. Other statutes fill in the details. In fact the supplementary laws may be as important as the codes. For example in German tort law the code imposes only liability for fault, but supplementary laws make railways etc. liable for accidents even if they were not at fault. All the same, the codes have a special prestige. They are not lightly altered.
Along with codes and supplementary statutes, scholarly writing, often by university professors, has an important place in civil law systems. Scholars explain and comment on the codes, statutes and decisions of courts. The views of the best of them are treated with respect. Court decisions are also important, but are anonymous. Individual judges remain in the background.
The same elements are to be found in common lawsystems, but in a different order of importance. Some common law systems have codes, but most do not. The statutes (apart from the constitution, if there is a written constitution) are all on a level. The decisions of judges of the higher courts are binding, and much of the law is left to the courts to develop. When a court consists of several judges, each can express a separate opinion. The opinions of individual judges have the sort of prestige that in civil law systems attaches to the opinions of scholars. Scholarly writing has some influence, and its influence is growing, but the opinion of practicing lawyers — professional opinion — is more weighty.
In civil law systems, then, reasoning from general principles(to be found mainly in the codes or in scholarly writing) is the norm. Common lawyers argue more from case to case and tend to mistrust appeals to broad principle.
Suppose someone strikes my name off a database, so that I am not paid a pension to which I am really entitled. Has he committed a wrong against me? A civil lawyer would probably begin by asking whether I had suffered damage, whether the person who struck me off was at fault and whether his fault (if he was at fault) had caused the damage. A common lawyer would ask how like this is to other cases in which liability already exists. Is it like attacking my character ('defaming' me) by saying that I have pretended to pay the pension contributions that were due but have not really done so? Is it like making a false statement that harms me, by saying that I am not entitled to a pension when I am?
Though the contrast is not as sharp as it once was, civil and common lawyers still differ in the way they reason. To understand why they do, we need to understand the importance of writing in legal development. Before writing comes to a society, its laws are customary. But customs without writing tend to be local and variable. Unless they are in the permanent form that writing gives them they seldom spread over a wide area or remain unchanged for long.