Comparative Law &

Common Law Legal System &

Civil Law Legal System

1. Definition of Law
● “A body of rules of conduct of binding legal force and effect, prescribed,
recognized, and enforced by controlling authority.” 1
● Law is contained in rules conduct laid down by a religion for only its followers
● It creates obligations - framework - not rights, being above everything and not
to be confused with government ratifications or regulations

2. Comparative Law
● Definition of Comparative Law:
Study of relationships between different legal systems, of rules of more than
one legal system and their differences and similarities. It is a method
providing results according to the respective culture and helps to gain a better
understanding of foreign Legal Systems → “Measure”

3. Purpose of Comparative Law

● Value for the historical study of decision making
● it contributes the historical research and helps clarifying the place of law in
society, the nature of law itself and the objectives of law etc.
● Can help understanding foreign Legal Systems and give legal advice for
mutual international relationships (Government officials, businessmen, etc.)
and may help forecasting the future of National Systems → Intercultural
Understanding in times of Globalization and interconnection of markets

4. History of Comparative Law

● 6th century BC Solon gathered the rights of Athens
● 5th century BC a Sicilian Commission did similar and created the Twelve
Tables
● 4th century BC Aristotle collected 158 city laws to model a constitution
● 19th century first University chairs established in
● 1920: First French Institute of Comparative Law established
● There was always a search for foreign advice, but was often hindered through
e.g. parochialism, contempt or barbarians

4.1. Historical application of Comparative Law

- 19th century movement towards re-/codifying legal systems
- Code Napoleon 1804 has many foreign influences
- French Public Law dragged to other countries

5. Application of Comparative Law

1
https://legal-dictionary.thefreedictionary.com/law
 ● Many countries have integrated foreign legal features or adopted whole codes
of other countries over the years, creating a mixed Legal Systems all over the
world
● Countries might have Legal Systems from the same family, but every
country’s System is different being the result of the local culture/ tradition
● Within one country can exist multiple different Legal Systems (e.g. Kongo
8000)
○ English Common Law in USA, Canada, Australia, NZ, India,
Nigeria, ...
○ French Law in Africa, Madagascar, Egypt, S.E. Asia
○ Swiss Law in Turkey
○ German Law in China and Japan (Mix with French Law)
● Non-Western Countries might not agree with Wester Legal Traditions
● Communist Systems don’t regard the rule of law as an ideal for society but
rather as injustice and coercion (compulsion)

6. Practice and Use of Comparative Law

● UNIDROIT (USA/GER/IT): International Institute for the Unification of Private
Law
● Comparative Studies used by Practical institutions (e.g. Max Planck Institute)
and vice versa Institutions conducting studies and research in Comparative
Law
● Main Goal: development of an International Law regulating the jurisdiction
outside of the national jurisdiction (e.g. International Trade)
(Problem: Nationalist/ Populist movements blockade overcoming of individual
national differences
⇒ Globalization and international connection of laws requires a
harmonization/ unification of laws in order to provide better
international cooperation
⇒ Courts and Legislators make use of foreign law
● Legal Coordination for the Unification Process of the EU (Brexit?)
● Developing a sensitive approach is crucial in the practice of Comparative Law
e.g.
○ centralized countries vs. distinction of federal and secondary law
○ Sovereignty of Parliament (ENG, FRA) vs. Legislative Review (USA,
GER)
○ Bourgeois Traditions vs. Policy of collective ownership (production in
socialist States)

7. Methods
● Countless Legal Systems in the world and some countries have not yet
unified their national legal systems
→ Sometimes differences are easy to separate and compare, sometimes
experts can extend their studies to similar branches of the family
7.1. Micro Comparison
● Analyzes the laws belonging to the same legal family and through
observing the differences he will decide whether they are justified whether
 the innovation made in one country would have value if introduced in
another country - usually done by “pure jurists”

7.2. Macro Comparison

● Investigation and Comparison of full Legal Systems in order to gain
insights into foreign Institutions and thought processes/ ideas - “the big
picture”, the role in government, the role in communities → Political
Scientist; GG)
7.3. Taxonomy / Families
● Legal Systems can be grouped into families e.g. Roman-, Common-,
Socialist Law
7.4. Difficulties
● Identification is more complex as many Legal Systems adopted foreign
legal features escaping the Classification
○ Mix of local laws and traditions (Family, Personal statute, Land
law) with Western legal traditions (Criminal, mercantile law) e.g.
Africa, Middle East
○ Legal Systems of the same Family vary from each other e.g.
Common Law: USA - Federal Government ⇔UK - Unitary
Government)

8. Legal Traditions

8.1. Definition
● Set of deeply rooted historical conditioned attitudes about the nature of
law, the role of law in society and the polity, about the proper organization
and operation of a legal system, and about the way is or should be made,
applied, studied, perfected and taught

Civil Law Common Law

Origin/ - 528-534 AC: Corpus Juris Civilis of
History Justinian + Digesta + Novella
- Equity Law for foreigners in Roman
Empire
- 12/13th cent.: rediscovered and Bologna
University center for Civil-/ Canon-/
Merchant Law Studies (Glossators) and
Salamanca
- 1230: the “great Gloss”
- 14/15th cent.: Spreading of written laws
- 16/17th cent.: Scottish lawyers study all
over Europe and take back Roman Law,
and add it to the Common Law, uncodified
- 1631: Hugo Grotius “Introduction to Dutch
Jurisprudence” – universal concept of law
- 18th cent: Enlightenment movement
- 11th cent.: Evolves in England
- <1066: Borh-System and Customs ruled
- 1066: Norman Conquest with William of
Normandy introducing feudal system, a
strong centralized administrative body and
Curia Regis with first Writs
- 1215: Magna Charta - Chapter 61 also
Habeas Corpus
- 12/13th: local jury decided on case facts
and relevant local customs
- 14th cent.: Establishment of Court of
Chancery
- 16/17th cent.: Protestant Church splits
from Roman Church in England - Sir
Edward Coke and Common Lawyers
fought against Royal Prerogative
- 17th cent.: Equity Law
- 1707<: Common Law of England was
 - 1767: Pothier “traités” (Combination of
French and Roman Law)  Code Civil
- 1786: Code of Joseph II (Austria)
- 1789: French Revolution
- 1794: Territorial Code of Prussia
- 1804: Code Napoleon *(1)
- 1811: Civil Code Complete Austria
- 1820-1889: Codification of many
European countries
- 1896 (1900): German “BGB” *(2)
- 1912: Swiss Civil Code
- 1916 -1936: Brazil, Turkey, Mexico, Pre-
Communist China, Peru
Structure - Codified
- highly systemized and structured legal
codes
- Private Law (Betw. Individuals)
 Ordinary courts – Most civil and
criminal cases – civil, commercial and
penal codes
- Public Law (Betw. Individuals and State)
 Administrative courts – admin. Cases,
independent from ordinary courts with
special designed admin. Rules
Court - Integrated Court System (with extended
System trial process)
Source of - Comprehensive legal codes applied and
Law interpreted by judges
- State broad general principles
- completed by legislative statutes
- Separation of powers (Legislature
legislates and Judiciary judicates)
→ Montesquieu
- - Customs and Legal Writing can be
Application - Judges are bound to the Civil Code and
of Principles reason
- also bound to decisions of higher court;
constitutional and administrative court
decisions are binding
- Interpretation:
1) Judge discovers the intention of the
legislator and traces down the
history of the principle
- Provisions of the obscure text
- Examines the legislations as whole
formed “Common to all parts of the UK”
- 1723-1780: William Blackstone
“Commentaries on the Laws of England”
- 1818: Introduction Civil Law features in the
Early American Republic
- Mostly uncodified
- Recorded judgments in yearbooks
- Very specific and detailed rules
- Mainly a public law system
- Aims to find a practical solution to a
specific problem
- Specialty Court System (with single event
trial)
- Primary Source:
1) Precedent
- Judicial decisions already made in
similar cases
- “judge-made case law”
2) Legislation - codes/ statutes/ treaties
by the British Parliament
- Subsidiary Source:
quoted for support
- Precedence: analyzing of previous
decisions and transferring a common
principle to the specific case (analogy)
- Stare decisis: Doctrine that binds judges
to superior courts
- Vertical Component: Inferior Judges can
express opinion on precedence and
suggest an appeal
- Horizontal Component: Precedence is
only binding for the result, not for the
reason
 “travaux preparatoires”
2) Identifies its function
3) Determines the domain of the
application
4) Explains their effects in terms of
rights and obligations
- Binding until it’s overruled by a superior
court or a statute
- Courts can reconsider their own
precedence
→ If judge points out a difference to a
current case and denies analogy →
“Distinguishing”
- propose new rule to new fact for all courts
- For Resolving Conflicts Appeal courts can:
1) Overrule – decision of a similar case
on a basis of different rule
2) Reversal – reverses decision of a
lower court in favor of other party
3) Disapproval – expresses doubt about
validity and applies another rule

→ Rousseau: State is all source of law → Hobbes: Individual agreed to forfeit only
under social contract certain rights to the State

Appointment - Highly skilled but inexperienced judges/ - appointed by experienced practicing

and undergraduates lawyers because of their important role
Selection of - practicing with higher judges or judging (they say what the law is) – postgraduates
Judges lower cases before GER

Procedure - Inquisarial (exploring) - Adversarial (conflict)

- Proceedings depend on the parties (their
attorneys) preferences
- Judge does oral questioning of witnesses;
asks for facts
- judge appoints the experts and accepts
their opinion
- judge has a more active role
- Civil, Administrative or Appellate
procedure
- attorney presents facts, the positions of
each party and the legal view including all
the relevant precedents
- Judge = “referee”: manages the procedure
and takes decisions, reviews and sums up
legal principles and evidence for the jury
- Parties bring and question their own
experts and judge decides

- Priority on Substantive law matters - Supremacy of Due process and rules of

evidence
- Extended Process - Single-event trial

Legal - Deductive - Inductive

Resoning

Actors - - Civil cases: Plaintiff  Defendant

- Criminal Cases: Accused person 
Person Injured

Advantages - Certainty
- Predictability
- Uniformity

Disadvantag - Precedence limits discretion of judge

es - Development of inconsistent rules come
into conflict
- Law reports - legal rules are difficult to
 learn and apply

Application/ - Continental Europe - Private Law of England, Wales, Ireland,

Countries - Latin America, Egypt USA, Canada
- Brazil, Mexico, Pre-Communist China, - British Colonies and Commonwealth
Peru, Turkey, Japan, - India, Pakistan, Malaysia, Jamaica

- Both families share similar social objectives such as Individualism, Liberalism and Personal
Rights → Functional similarity
- Mixed Jurisdiction Systems with suffusion of Romano-Germanic and Anglo-American traditions
e.g. Scotland, South Africa (un-codified Civil Law), Louisiana, Quebec and many African countries
- Common Law Jurists must be aware of distinction between public and private law and vice versa
Civil law Jurists must appreciate common Law concepts of unwritten customary Laws
- Reciprocal Influences concerning the European Unification as the UK must implement EU
jurisdiction (Civil Law) including European Court for Human Rights → influenced English Law …
Brexit?

* 1) French Civil Code (Code Napoleon) 1804

 A revolutionary Code reflecting the achievements of the French Revolution
 Designed to remake the law in the image of a better society
 Purely rational law creating moral justification for the first time in history
o → Based on the conformity with the dictates of reason, not ancient custom or
paternalism
 Contains principles of freedom, equality of all citizens and inviolability and protection
of property together with conservative pre-revolution Customary Law values (Pothier
1699-1772)
 3 books containing the general principles of law
o Book 1: Civil Rights. Person, Marriage and Divorce and Paternity
o Book 2: Real and Personal Property
o Book 3: Provisions on rights of succession, contracts and obligations

*2) The German BGB

 Arouse from dispute between Codification Movement (A.J. Thibaut) and Historical
School (Carl. F. Savigny) in 18th century
 Combination of “Spirit of Tribes” (Zeitgeist) and Codification
 Gives broad principles instead of teaching men in detail
 Good Faith and Fair Dealing in all affaires
 Very detailed, accurate and structured and systemized
o Book 1: General Part
o Book 2: The Law of Obligations (Contracts, Delict, …)
o Book 3: Real and Personal Property (Ownership, Possession, Servitudes,
Securities)
o Book 4: Family Law (Marriage and Relationships)
o Book 5: Inheritance Law (Heritage)