Conflict between Common Law and Civil Law as Compared to the Conflict between Civil Law Systems - Coursework Example

Are Conflicts Between Common Law And Civil Law Systems More Difficult To Resolve When Compared With Those Between Rival Civil Law Systems August 22,2010 Are Conflicts Between Common Law And Civil Law Systems More Difficult To Resolve When Compared With Those Between Rival Civil Law Systems Tetley (1999) states that civil law is that defined as the legal tradition which originates in the law of Rome and codified in the Corpur Juris Civilis of Justinian…” Tetley states that the common law is the evolution of the English tradition of law beginning in the 11th century. The principles of civil and common law are derived from different sources and yet the highly systematized civil law and the more detailed prescriptive common law are more similar than might be conceived at first consideration and simultaneously are at odds with one another in their application. Mixed legal systems are those which may be found globally and those which are characterized just as it sounds by a mixture of elemental legal principles and concepts. It would at first appear that the mixed legal systems would characterized by a greater level of disagreements in application due to the diversity represented within the global mixed legal systems and that there would be more inherent conflict between these systems than would be present in the system composed by common and civil law. However, this study will show that this is not the case. What follows is a review of literature that is scholarly and peer-reviewed in nature and which supports the findings stated at the end of the present study. The concept of justice is stated in the work of Alice Erth-Soon Tay to be such that is “…treated as “a timeless idea or ideal…as an immutable standard in the light of which we are to judge individual actions and cases, legal systems and social arrangements.” (Tay, nd) The concept of justice is stated to be “itself the subject of competing interpretations and demands” and justice that is formal in nature is stated to be “contrasted with concrete or substantive justice, legal justice with ethical, social and civil justice are contrasted with collectively-oriented distributive and communal justice; personal claims compete with group claims.” (Tay, nd) The problem that presents is there are “sharply divergent conceptions of what is just, fair, or equitable.” (Tay, nd) Tay notes that there are “enclaves of justice” described as areas of agreement on the social level as to what justice requires. Justice is stated to “create a presumption in favor of equality and that all individual claims are valid enough to be duly considered and that in “this sense…legal justice, ethical justice, social justice and economic justice rest on a common foundation…” (Tay, nd) The majority of civil law systems throughout the world have derived initially from the common law of that specific country. For example the Australian legal system is reported to have grown “out of the English common law tradition.” (Sino-Australian Seminar Speech, 2002) However, the Australian constitutional structure is stated to be a “federal system of government, and drew just as heavily upon the experience of the United States of America as it did on British political experience.” (Sino-Australian Seminar Speech, 2002) Therefore, the governmental structures in Australia are reflective of both traditions.” (Sino-Australian Seminar Speech, 2002, paraphrased) I. The Rule of Law The rule of law has been contrasted historically with the ‘rule of men’ and “to some, the rule of law is a prerequisite for any efficacious legal order…” while others view the rule of law as “advancing, even embodying, a particular view of desirable political values.” (Sino-Australian Seminar Speech, 2002) The rule of law can be conceptualized from the individual perspective and the relationship that the individual holds with others in the society. It is stated that when it is viewed from this angle that the rule of law has as its focus the “identification of external norms of behavior that will predict, regulate and give content to the rights and duties of society’s participants.” (Sino-Australian Seminar Speech, 2002) The rule of law when viewed in this manner places an emphasis upon the “norms that are external to the individual” and that these are equally applied and necessarily fixed by a process that is external and that will enable the identification of their content with a great level of certainty prior to the occurrence of events or the undertaking of obligations. However, this view of the rule of law is not all inclusive. II. Conflict of Civil and Common Law The work entitled “Cultures in Conflict: The Role of the Common Law in the South Pacific” published in the Journal of the South Pacific (2009) states of the English or Commonwealth Common Law that this laws is developing in an ongoing manner through modern case law and that “as a result of these developments, the distance between the common law of England and the common laws of the countries of the Commonwealth widens.” (Journal of the South Pacific, 2009) Common law in the Commonwealth provides that the common law will be continued in force and specifies that the common law will be applicable “only if it is appropriate to cal circumstances.” (Journal of the South Pacific, 2009) What this really means is that the principles of common law “may be discarded or modified by the regional courts if they are inappropriate to the country in question.” (Journal of the South Pacific, 2009) III. Mixed Jurisdiction Systems Mixed jurisdiction systems are while “separated by oceans and by history, and by many cultural and linguistic differences…tend to understand one another very easily and do not feel alien in each other’s culture. They are brought together it seems by their knowledge of both common law and civil law and how these traditions interact within the same system.” (Palmer, 2007) The mixed system is described as one in which “Civil Law and Common Law doctrines have been received and indeed contend for supremacy.” (Palmer, 2007) Reported is that legal pluralism has provided insights to many jurists and colleagues and this has resulted in a wider recognition of mixed legal systems. The primary requirement of the pluralist view is the existence of two or more types of laws or legal traditions within the same legal system. (Palmer, 2007, paraphrased) A mixed legal system is often formed when political sovereignty is lost by a political group but the preservation of the right to live in accordance to personal or private laws has been retained. (Palmer, 2007, paraphrased) It is the struggle for ‘personal law’ that is reported to have been “the hallmark of the classical mixed jurisdictions as well as the raison d’etre of complex pluralism in many parts of the world” (Palmer, 2007, p. 1). Indeed there are noted to be no people that has ever surrendered its personal law or voluntarily adhered to a personal law differentiated from its own. The following illustration has been adapted and shows the various rules of law throughout the world. Figure 1 Source: Palmer (2007) IV. Elements of Law All national private European laws are described as mixed legal systems as none of these has “remained ‘pure’ in its development since the Middle Ages” (Palmer, 2007, p. 1). Each is representative of a variety of different elements including: (1) Roman Law; (2) Indigenous customary law; (3) canon law; (4) mercantile custom; and (5) Natural Law theory…” (Palmer, 2007) Throughout history the mixed legal systems have continuously increased in terms of “contact, commerce and communication” among people. (Palmer, 2007) This mixing of the systems is not something that can be avoided and neither can purity be sustained upon having attained networking on the social and intellectual levels between foreign people. (Palmer, 2007) V. Common-Law and Civil-Law Conflict and Civil-Law and Civil-Law Conflict The work of Goldstein (2006) entitled “Crossing the Common-Law Civil-Law Divide in International Arbitration: A Primer for the Perplexed Practitioner” notes that there is a chasm between civil law codes in different countries and that this is so because of basic factors such as the need for translation because civil law codes and commentaries “need to be understood with all the nuances of meaning that their drafters intended…within the fabric of the legal culture of that country.” (Goldstein, 2006, p.13) The practical construction is another element in that the code language within any legal system is animated in its application. Furthermore, civil law legal systems are not full with case law leaving the common lawyer reliant upon civil law associates and colleagues for understanding and grasping the “…context, nuance and perspective” (Goldstein, 2006, p.13) of the application of law in that specific legal system. It is stated that the growth of the values and practices shared by common and civil law has been remarkable in nature. VI. Interaction and Interdependence Between Common Law and Civil Law Hogsdon (2009) notes that legal systems have historically been reliant greatly upon the state. Hogsdon states that the proposition has been made that the state serves primarily to “sanction or modify pre-existing laws; as a statutory codification of existing customary arrangements (2009, p.4) The legal system serves to formalize what is already behavior considered acceptable in the society. Hogsdon states that the emphasis on the state does not mean that custom is viewed as being unimportant but instead in order to be enforceable the laws must be viewed as being fair and reasonable. The law is required for the most part to be in conformance to custom that has already been established and the state’s collective power is vested within property rights and the transactions that take place within capitalism. Custom is key in sustaining law. Law is more than custom however, law and custom “share some common psychological foundations.” (Hogsdon, 2009, p.5) Problems that arise when considered common and civil law is the fact that common and civil law are at odds because force of habit and rote imitation are not enough to support the requirements of legislation and enforcement of the law. Hogsdon expresses that there is a problem in regards to the evolution of law is explaining how culture could suppress both the behaviors and the emotions that are stimulated in that those who punish those who do not adhere to the rules through the “institutionalized enforcement of abstract legal principles rather than freelance outpourings of visceral emotions (Hogsdon, 2009, p. 6).” Customs and norms are sufficient in societies characterized by personal interaction to maintain the rule of law however, in the societies that are larger characterized by less personal interaction the possibilities of internal conflict are increased. Hodgson notes that the work of Redfield states that law is “associated with the potential use of force ‘on behalf of the whole group’ and that the ‘beginning of law and the beginnings of state are thus closely associated” (Redfield 1950, in: Hodgson, 2009). Summary and Conclusion This work has examined the conflict that exists between common law and civil law as compared to the conflict existing between civil law systems and has sought to determine whether the conflict is greater in one case than the other. This work and the literature reviewed herein haws shown that there are conflicts in each of these cases. In the first case the conflict is of a nature that maintains a balance between civil and common law in terms of its application. In the second case this work has shown that since the mixed legal systems are quite accustomed to inherent differences and because of this the conflict is overcome and resolution eagerly sought by both sides of a case when mixed legal systems come together seeking resolutions in areas of the law. The presumption of a difference appears to be of the nature that in both of these cases examined is such that promotes the ability of those involved to work toward a common and mutually beneficial resolution. Works Cited Goldstein, M.J. (2006) Crossing the Common Law-Civil Law Divide in International Arbitration: A Primer for the Perplexed Practitioner. Hodgson Russ Attorneys. Online available at: http://www.hodgsonruss.com/files/1_2_1/mjg_common_law_civil_law_divide.pdf Hodgson, G.M. (2009) On the Institutional Foundations of Law: The Insufficiency of Custom and Private Ordering. Journal of Economic Issues. Vol. XLIII. No. 1 March 2009. Online available at: http://www.geoffrey-hodgson.info/user/image/inst-found-law.pdf Redfield, R. (1950) Maine’s Ancient Law in the Light of Primitive Societies. Western Political Quarterly, 3, 4 (December 1950): 574-589. Redfield, R. (1957) The Primitive World and Its Transformation. Ithaca, NY: Cornell University Press. 1957. Tay, Alice Erth-Soon (nd) The Concept of Justice as Social Regulator in Law, Politics, Economics and Culture. Online available at: http://www.bibliojuridica.org/libros/3/1013/2.pdf Tetley, W. (1999) Mixed Jurisdictions: Common Law Vs Civil Law (codified and uncodified) (Part II) 4 Uniform L. Rev. (N.S.) 1999-3, 591-619. Online available at: http://www.unidroit.org/english/publications/review/articles/1999-4-tetley2-e.pdf Read More