Of the two great legal systems in the world, the common law and the civil law, the former has an artificial prominence, buttressed by be economic might of the United States of America.
The civil law, just like the common-law, evolved from customs to codification. Although you might hear differently in English old boy’s clubs, and assuming you can understand the interlocutors in their thick English accents, the civil law is simply an evolved common law system.
Fifteen hundred years ago, Justinian codified all the many customs then extant in Roman law (from which derived the civil law) so that the people would know in one simple document, what the law was.
People were entitled to know, rather than to guess, what would be enforced by the courts.
Still, not all nations knew of the civil law or cared to change their traditions.
But at the turn of the twentieth century and especially after the Second World War, most nations replaced their myriad custom–based legal system and opted for a civil law or a common law system of law.
It was "do it or starve".
Circe 2009, discreetly but undeniably, common-law jurisdictions are codifying at a frantic rate. Everywhere, statutes now pre-empt the customs of the common law, extracting on a statute-by-statute basis common law judges from their cherished Sunday fox hunt for a quaint common law custom; the rule in Brown v Dunn ... the rule in Hoge's case ... etcetera.
It is a rare barrister who knows the difference - those that have represented real clients before both common law and civil law courts. But they know that the portal to custom-based common law is too often a thinly-veiled but fashionable term for judicial discretion.
Breach in the Castle
Even in England, the European Union law is washing up onto the shores of the Thames, slowly mounting a civil law offensive. Already, many EU legal directives are poised to force the harmonization of the common-law to the civil law model of Europe. A good example is the common law's fondness of holding a man to his contract which may not survive the introduction of EU Council Directive 93/13/EEC which allows a contract to be set aside if there is a "significant imbalance in the parties' rights and obligations arising under the contract".
Internationally, civil law rules supreme as common law lawyers are hard pressed to get the microphone if they want to add consideration and equity to the mix of trade treaties.
But the civil law is approaching the cliffs of Dover slowly. There is no urgency. In the mantime, they are mixinginin as much honey as possible.
France has been obliged to translate their 200-year-old Civil Code and create an official English-language version. Up until the European Union, France would never have countenanced such an idea. But in their English translation, they frequently elect old common law words to define similar but distinct concepts of civil law. Hypothèques are mortgages and for la confusion, the French opted not for, well, confusion but instead deferred to the common law term of merger.
In any event, it is only a matter of time before the common law dies.
Other than a few countries with Muslim law, almost all jurisdictions have elected either a civil law or a common law system of law. In many countries, there is some overlap but that usually favours the civil law given the common law’s infatuation with codification since the early 1900s.
The Map Tells the Tale
The University of Ottawa in Canada had the bright idea several years ago to produce a world map showing the distribution of common law and civil law jurisdictions. That comparative analysis has proven wildly popular, so much so that the university created a trade-mark (JuriGlobe) and a website just to present that map in six different languages: juriglobe.ca.
The data is only as good as the subject: inexact, given that many have much of one and a bit of the other.
And there are disturbing errors. For example, according to JuriGlobe, Japan, China and India are mixed common/civil law systems. On that basis, no jurisdiction could be labeled; all would be mixed.
Try telling a Chinese or Japanese legal historian that they have a partial common law system.
Still, the statistics are striking.1
The civil law giants include China, Japan, Russia, all of Europe except for Great Britain, Turkey, almost all of South America, Québec, all of Central America except for Belize, Mexico and the American state of Louisiana, Cuba, Haiti and the Dominican Republic. Vietnam, Thailand, Laos, Cambodia: all civil law jurisdictions.
The common law giants are India, USA, UK, Australia, New Zealand, Canada, Jamaica and the Philippines.
According to JuriGlobe, 40% of the world population is governed by a pure civil law system; compared to only 12% governed by a pure common law system, and 2% governed by a pure Muslim law system. The remaining population is governed by a variety of mixes of the above.
Writing On The Wall
The stubbornness of a common-law to surrender to the civil law is purely economic. No jurisdiction would want a sudden change in legal system because of the financial and political costs.
The GDP of pure and mixed common law systems totals 40% of the world total; a formidable total against the 54% of GDP of pure and mixed civil law systems, and the Hadrian’s Wall not only to common law progress, but to international harmonization of domestic law.
But the primarily civil law European Union, if nothing else, have learned the virtues of patience. While law school academics and the occasional politician trumpet the angelic virtues of the common law and equity, the merchant grumbles. In any event, it is unlikely that the death of a common law will occur in their lifetime but it is nonetheless certain.
It has always been the grumbling and the demands of merchants, aka international trade, that has led the evolution of law away from local and customs-based to codified law.
Common law book publishers may wish to affix to their new law books a sticker stolen from the dairy farm: expiry date: 2100.
REFERENCES:
- JuriGlobe.ca
- Note 1: Africa remains a veritable quilt of civil, common and Muslim law.