The steady convergence of the two systems
Common law and civil law are the two main legal systems operating across the globe.
These systems are inherently separate and distinct. Classically, case law is the principle source of law in the common law system, and statutory law the one of the civil law system. Most people think judicial activism is an attribute of the common law, while civil law judges are more passive.
But the dividing line is not so clear anymore — many factors have participated in reducing these differences, leading to their convergence.
Characteristics of the two systems
The majority of English-speaking countries practise common law, such as England, the United States and Hong Kong. Civil law is practised by the majority of European countries and South American countries as well as by China.
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Civil law’s most prevalent feature is its rule-based nature: that the law’s core principles are codified. However, civil law countries are now adopting more of a case law-heavy approach. For example, all French codes contain multiple case law references under each statute to explain the meaning of its wording. French jurist Portalis famously said in a preliminary speech made during the presentation of the Civil Code Project in 1827:
The function of the law is to fix, in broad outline, the general maxims of justice, to establish principles rich in suggestiveness, and not to descend into details.
Some terms employed in the French Civil Code are out-dated (it was first published in 1804 after all), and are too short to be used properly. For instance, theft is described by Article 311-1 of the French Criminal Code as “fraudulently taking something from someone”. Such formulation doesn’t specify whether the offence covers theft of material goods only or also that of immaterial ones. Recently, the Court of Cassation (France’s highest court) ruled that an employee who stole information from his employer’s computer committed a theft. This decision was published and thus proclaimed as a principle. Consequently, case law helps to fill the gaps left by broad statutes.
Another example is Article L711-3 of the French Intellectual Property Code, which asserts that trademarks should not be contrary to morality. As morality evolves with time, judges have to interpret and develop the scope of morality.
And many common law countries are now codifying their law. For example, Hong Kong adopted the Supply of Services Ordinance stating that if parties to an agreement were silent about the price then the buyer must pay a reasonable price. French law also stands for this principle concerning the supply of services.
Hong Kong has also adopted the Misrepresentation Ordinance under which the representator is liable for a negligent misrepresentation. Even though some case law already covered the liability of the representator before the enactment of this ordinance, lawyers will most likely base their arguments on the newer Ordinance because the earlier cases covered only fraudulent misrepresentation or negligent misrepresentation, while the Ordinance covers negligent misrepresentation as if it was fraudulent misrepresentation, allowing for a recovery of all the losses.
Stare decisis is the principle according to which lower courts are bound by higher courts’ decisions. This is supposed to be strictly followed by common law judges. However, they apply it with flexibility, because — as Zweigert and Kotz explain — they won’t follow a decision that seems unsatisfactory because the ratio decidendi doesn’t cover the instant dispute.
A judge will also be likely to overrule an earlier precedent to meet “the needs and interest of the times”. Take the MacPherson case where English judges overturned the doctrine holding a manufacturer “liable to persons other than his immediate buyer for injuries caused as the foreseeable result of his negligence” only if the goods were inherently dangerous. This overruling was justified once again by social propositions.
So it seems the differences between the two systems are more about the form than the substance — at least when compared to other legal systems such as Islamic law that relies on the law of God — as civil law and common law have similar purposes. This convergence serves a more harmonised international integration and provides for successful treaties between countries of different legal systems, such as the European Convention on Human Rights.
Katia Beider is a law student at the Chinese University of Hong Kong.
Melvin, E, The nature of the Common Law, (Harvard, 1991)
Merryman, J, “On the convergence and divergence of the Civil Law and Common Law”, Stanford Journal of International Law, 1981
Zweigert and Kotz, An introduction to Comparative Law, 3d edition, 1998