Comparative Legal Systems in Different Countries

Overview

The main legal systems in the world are common law and civil law. Judges are allowed to make the law in the common law in the form of judicial precedents while in the civil legal system they are not allowed to participate in the legislative process¹. Civil war comes from the Roman law which is a system of written, codified statutes or laws. It is in practice in the European countries excluding the United Kingdom. France and Germany rely on the Civil law. The laws are usually developed by academicians and then enacted into law by the legislative body. These laws are formed based on philosophy, theory and abstract principles². The main differences between the civil and common law system are the sources of the law. In the common law system, the judicial decisions are the primary sources of the law while for the civil law the primary source is the statutory law³. The courts in the civil law are charged with the role of interpreting the law and do not make it. The use of precedents however is inconsistent or irrelevant in most cases in the civil legal system.

America Legal System

In the United States there are four different sources of law. That is the constitutional law, the statutory law, the administrative regulations and the common law. The most important law is the constitution and these other law sources are inferior to the United States Constitution. When it comes to the common law it also involves case law which is a wealth of information on the judicial decisions that have been made by selected higher courts which are interpretations that are usually relied on to judge subsequent cases⁴. They therefore form precedents. Precedents are commonly used in the common law systems where a legal case in the past establishes a rule or principle which judges use to make judgments in other subsequent court cases which have similar facts. There are two kinds of precedents in the legal system. A precedent may either be binding or persuasive. In binding precedents, judges have to respect and abide to the decisions of the higher courts⁵. Binding precedents do not have any significant application in the countries that practice civil law. This is because they are seen to be controversial and wrong since they interfere with the roles of the judges and the legislature. The legislature’s role is to make law while the judge’s role is to interpret the law. They only practice the principle of jurisprudence constant. This ensures that the judges maintain their independence however they should act in a predictable and orderly manner in consideration of what has happened in the past.

In May 1966, in the case of Rouse Vs Dale, The plaintiff asked for a writ in habeas corpus yet he had been involuntary confined to the hospital. He was found to be insane after his criminal trial. The Court of Appeal District of Columbia found that the plaintiff had a right to appropriate treatment. The court relied on a precedent it had set in May 1966, in a similar case where Catherine Lake was also applying for a relief in habeas corpus.

The persuasive precedents are used by judges but they are not in any way binding to the judges⁶. These constitute decisions that are made by peer or lower courts. It also constitutes decisions made by superior courts but in different geographical areas. There are vertical and horizontal precedents. In vertical precedents, the lower courts are bound by the legal decisions of the higher courts⁷. In the American system, the Supreme Court has two separate judicial hierarchies under it. There are the state and federal courts. The aspect of judges making law in the common case law has been supported as it is viewed that the judge is aware of certain facts in the case that the legislature body is not aware of.

The use of judicial precedents in the United States is not as formal or extensive like the United Kingdom⁸. American judges have more power to disregard former valid precedents and come up with a different ruling. The judge may deem that there was no clear ratio decidendi in the “plurality opinion” that that court had come up with. The precedents may also be overruled. A judge may also avoid the binding aspect of a precedent by distinguishing his case from the precedent by confining the ration of the case to the facts of the case or by simply ignoring a precedent. The case law in the United States also has to have a period where it passes an evaluation period in which the lower courts participate in the process⁹. If during this period, the case law is found to be wanting then it will eventually wither away, something that does not happen in the standard practice of common law in the United Kingdom. The judges can also decide that the cases were wrongly decided and overrule the precedents.

Germany

The legal system in Germany is a civil law system that does not depend on the precedents but on the law of the land. The judge is bond only by the law. As long as his judicial decisions are within the legal framework of Grundgesetz which is the constitution then it is a valid decision. Actually the constitution gives the judge a level of independence as he conducts his work. In Art 97(1) GG it actually specifies that the judges shall be independent and subject only to the law. The decisions made by the Federal Constitution courts are formally binding on the courts which are below however the decisions made by the Federal Courts of Justice are not formally binding. The decisions of the federal courts are referred to but not in the way a precedent is binding. The judge is independent and free to interpret the law as long as he is within the legal framework¹⁰. The decisions of the Federal Constitution Court have been given the status of the law. The decisions of this court can therefore be termed as de jure binding precedents. An example of the use of precedence in Germany was demonstrated in December 12, 2003 in the case of the Church of Scientology vs the Government. The Administrative Court of Appeal ruled that the organization was a religious organization and not a commercial entity as put forward by the government. The judges relied on a precedent set in November 1997 where the German Federal Supreme Administrative Court issued a ruling that the Church of Scientology activities were spiritual in nature and the Baden- Württemberg could not de-register the church mission on grounds that it contravened its statutes by engaging in commercial activities.

When it comes to the federal constitution court decisions, the precedents carry a lot of weight and deviation from the legal precedent constitutes a legal error¹¹. The precedents are therefore having an impact on the legal arguments. There has been however a high increase of precedents in the country in the recent years due to statutory provisions that have assigned a binding status to select court decisions and certain statutory provisions that promotes the use of precedents. There is a statute that allows the Supreme Federal Court to review court decisions where the judges have refused to consider the precedents set by the Superior Courts. There is also a statute that gives the Supreme Court the appellate powers over a case that is considered to be fundamental importance in principle. The law therefore gives the Supreme Courts law-making power and to set binding precedents for the lower courts. Furthermore there is a statute that states that lawyers who fail to cite relevant cases from the Superior Courts will be liable and have to pay damages.

This also goes to increase the use of precedents. It also encourages lawyers and judges to constantly review the cases of the Superior Courts when making decisions. There are numerous statutes for the courts to follow which decide to deviate from a binding precedent. The lower court has to notify the Superior Courts of its intention to deviate from a binding precedent and its decision for choosing that course of action. All these provisions of the law show the unofficial adherence to the use of judicial precedents. The German government acknowledges that the use of judicial precedents serve several important roles in the criminal justice system. The Federal Constitution courts have seen that the certainty and trust of the law is high when the line of legal development that has been chosen is chosen consistently¹². The legal system in Germany is slightly different from the United States with low reliance on case law apart from precedents set only by the superior courts. The judges have more independence as they carry out their work.

France

In France, the legal system is based on the Civil law. The system consists of a judicial and administrative arm. The decisions of the administrative courts are binding and constitute the law because administrative laws are not yet codified. When it comes to the judicial arm of the law, the law is the only legal source of law¹³. The use of precedents is not allowed. However, the judges and lawyers informally rely and research on previous court decisions. The country of France mainly relies on the principle of jurisprudence constant. The judge is not bound to observe the decisions of former judges in prior cases. The past decisions are only taken into account only when there is sufficient uniformity. The previous court decisions only act as a persuasive source rather than the main law. The higher the level of uniformity in the past cases the more persuasive power it has. In the principle of jurisprudence constant, the judge will not cite a specific case president rather he will cite a continuous trend of uniform precedents¹⁴. The continuous line of precedents actually becomes a source of law¹⁵. However the judges are not allowed to show or profess their powers to create precedents. The creation is new rule is disguised under the notion of interpreting existing statutory norms. In fact in the judicial arguments, precedents are rarely used and if a judge uses precedent as the only legal source of ground then the case decision can be declared as not motivated and illegal under the Article 455 of the French Code of Civil Procedure¹⁶. The prohibition to openly recognize or rely on precedents is detailed in article 5 of the law. Furthermore in article 1351, the prohibition is addressed again with establishing the relative force of the res judicata. This are the cases where they are final, they are no longer eligible for appeal.

Although the use of precedents is prohibited, there is still an obligation set to follow the set precedents in history. In November, 2001, the country’s highest appeal court ruled that children with Down’s syndrome had a legal right to choose to never to have been born. Therefore they had the right to sue the doctors who were involved in the birth process. The doctor in the case had negligently failed to alert the mother that her baby had the signs of Down syndrome. Lionel was born in 1995 but the mother said she would have had an abortion had she known the correct status of affairs. The doctor was found liable and told to pay for the costs of care administered to the child. The judgment confirmed a similar case in November 2000. The court had given a ruling that Nicolas Perruche who had been born disabled should receive compensation from the mother’s doctor. He had also failed to warn the mother of the dangers of the German measles during pregnancy.

Therefore precedents are actually relied on and used in the courts however it cannot expressly be stated to be so. The French system of law has its basis or background at the time of the French revolution. Precautions were put in place to ensure that judges do not participate in the law making process¹⁷. In article 10 of the law of 16-24 August 1790, the courts are prohibited from participating in legislative power whether directly or indirectly. The law is still in effect. The law was a reaction to a period before the French revolution when the royal court judges made certain rules that were known as arrestes de reglements. These laws had an abstract and general rule that they were binding on all the courts that were functioning in the Parlement. This gave the courts a lot of excessive powers over a certain jurisdiction area. The laws of France therefore make a definitive distinction between judicial making and legislative power in the country in order to curb the powers of the judges.

There was a period in history that the French government recognized that the codes or the law are subject to omissions, provisions and ambiguities. They did not want the judges however making laws they therefore addressed this by creating a tribunal of cassation which would assist in interpreting the law. Due to the limitations of the law, they realized the legislature would be overwhelmed by interpretive requests and they wanted to avoid that situation. The tribunal of cassation would therefore void the court decisions where it felt the law had been interpreted wrongly. The case would be have to be retried again and the court’s decision squashed. It did not assist the courts or the judges with the correct interpretation of the law. Eventually however, the tribunal started to give interpretations to the law. Eventually, the tribunal was converted into the court of cassation and placed at the helm or top of the court system with all other courts subject to it¹⁸.

France relies strictly on the law in the courts more than Germany and America. The government does not want to encourage the practice of Judicial law making as they view it as dangerous to the legal system.

However in the recent years in countries such as America the use of legal precedents has been in the decline while in the countries that practice civil law the use of precedents has been increasing. The governments in civil legal systems have started to realize that codes do not and cannot cover all issues in the cases that judges find themselves looking at in their courts. Due to these gaps, the codes are subject to certain omissions, ambiguities and errors. Codes or laws are a communicative medium that has to be interpreted by the judge. Additionally, it takes time to amend the laws of a country. The process is long and cumbersome.

Judicial precedents therefore serve as a means for the legal and judicial system to respond adequately and timely to the societal changes. Where there is absolute reliance on the codes due to its limitations it becomes a highly lethal problem. These codes or laws which are meant to coordinate and stabilize the criminal justice system may end up undermining the whole legal system. With all these factors in mind, the judiciary comes in to address the limitations of the law. The judges are in the best position to address any issues as they hear the specific cases and can tailor the ruling to address the particular situation. Convergence of the use of codes or statutes and judicial precedents is therefore important and the legal systems that are based on civil and common law are the most viable.

References

Ancel, M. “Case Law in France” Journal of Comparative Legislation and International Law, Third Series, Vol. 16, No. 1, 1934, p. 1-17.

Carbonnier, J. “Authorities in civil law: France” in J. Brierley (Trans.) &J. Dainow (Ed.), The role of judicial decisions and doctrine in civil law and in mixed jurisdictions (Vol. 91). Baton Rouge, LA: Louisiana State University Press, 1974.

Cohn, E. “Precedents in Continental Law” The Cambridge Law Journal, Vol. 5, No. 3, 1935, p. 366-370.

Dainow, J. “The Civil Law and the Common Law: Some Points of Comparison” The American Journal of Comparative Law, Vol. 15, No. 3, 966 – 1967, p. 419-435.

Giacomo A. M. Ponzetto, G. & and Fernandez, P. “Case Law versus Statute Law: An Evolutionary Comparison” Journal of Legal Studies, vol. 37, 2008, p. 379-430.

Hondius, E. “Precedent and the Law” ,Electronic Journal of Comparative Law, vol. 11.3, 2007, p. 1-18.

Jeffrey, D.”Structure and Precedent” Michigan Law Review, Vol. 108, No. 8, 2010.

Kaufmann-Kohler, G. “Arbitral Precedent: Dream, Necessity Or Excuse?” Arbitration International, Volume 23 Issue 3, 2006, p. 357-378.

Komárek, J. “Judicial Lawmaking and Precedent in Supreme Courts” LSE Legal Studies Working Paper No. 4/2011.

Lipstein, K. “The Doctrine of Precedent in Continental Law with Special Reference to French and German Law” Journal of Comparative Legislation and International Law, Third Series, Vol. 28, No. ¾, p. 34-44.

Lobingier, C. “Precedent in Past and Present Legal Systems” Michigan Law Review, Vol. 44, No. 6, 1946, p. 955-996.

Merryman, J, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, Stanford University Press, California, 1969.

Schubert, F. Introduction to Law and the Legal System. Wadsworth Publishing, Belmont.

Sellers, M. “The Doctrine of Precedent in the United States of America” The American Journal of Comparative Law, Vol. 54, 2006, p. 67-88.

Siltala, R. A theory of precedent: from analytical positivism to a post-analytical Philosophy of Law: From Analytical Positivism to a Post-analytical Philosophy of Law, Hart Publishing, Oxford, 2000.

Smiths, J. Elgar Encyclopedia of comparative law. Edward Elgar Publishing Ltd, Cheltenham, 2006.

Troper, M.,&Grzegorczyk, C. “Precedent in France” in D. MacCormick & R. Summers (Eds.), Interpreting precedents: A comparative study , Dartmouth Publishing Co, Dartmouth, MA, 1997.

VincyFon, V.& Parisi, F. “Judicial precedents in civil law systems: A dynamic analysis” International Review of Law and Economics, Vol 26, 2006, p.519–535.

Footnotes

1. Lobingier, C. “Precedent in Past and Present Legal Systems”, Michigan Law Review Vol. 44, No. 6, 1946, p. 955-996.
2. Schubert, F. Introduction to Law and the Legal System. Wadsworth Publishing, Belmont, p. 88.
3. Ancel, M. “Case Law in France”, Journal of Comparative Legislation and International Law Third Series, Vol. 16, No. 1,1934, p. 1-17.
4. Hondius, E. “Precedent and the Law”, Electronic Journal of Comparative Law, vol. 11.3, 2007, p. 1-18.
5. Kaufmann-Kohler, G. “Arbitral Precedent: Dream, Necessity Or Excuse?” Arbitration International, Volume 23 Issue 3, 2006, p. 357-378.
6. Jeffrey D.,”Structure and Precedent”, Michigan Law Review, Vol. 108, No. 8, 2010.
7. Komárek, J. Judicial Lawmaking and Precedent in Supreme Courts, LSE Legal Studies Working Paper No. 4/2011.
8. Siltala, R. A theory of precedent: from analytical positivism to a post-analytical Philosophy of Law: From Analytical Positivism to a Post-analytical Philosophy of Law, Hart Publishing, Oxford, 2000, p.134.
9. Sellers, M. “The Doctrine of Precedent in the United States of America”, The American Journal of Comparative Law, Vol. 54, 2006, p. 67-88.
10. Cohn, E. ”Precedents in Continental Law”, The Cambridge Law Journal, Vol. 5, No. 3, 1935, p. 366-370.
11. Smiths, J. Elgar encyclopedia of comparative law, Edward Elgar Publishing Ltd, Cheltenham, 2006 p. 418.
12. Giacomo A. M. Ponzetto, G. & and Fernandez, P. “Case Law versus Statute Law: An Evolutionary Comparison”, Journal of Legal Studies, vol. 37, 2008, p. 379-430.
13. Troper, M.,& Grzegorczyk, C. “Precedent in France” in D. MacCormick & R. Summers (Eds.), Interpreting precedents: A comparative study , Dartmouth Publishing Co, Dartmouth, MA, 1997, p.107.
14. VincyFon, V.& Parisi, F. “Judicial precedents in civil law systems: A dynamic analysis”, International Review of Law and Economics, Vol 26, 2006, p.519–535.
15. Dainow, J. “The Civil Law and the Common Law: Some Points of Comparison”, The American Journal of Comparative Law, Vol. 15, No. 3, 966 – 1967, p. 419-435.
16. Lipstein, K. “The Doctrine of Precedent in Continental Law with Special Reference to French and German Law”, Journal of Comparative Legislation and International Law, Third Series, Vol. 28, No. ¾, p. 34-44.
17. Carbonnier, J. “Authorities in civil law: France” in J. Brierley (Trans.)&J. Dainow (Ed.), The role of judicial decisions and doctrine in civil law and in mixed jurisdictions (Vol. 91). Baton Rouge, LA: Louisiana State University Press, 1974, p. 95-96.
18. Merryman, J, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, Stanford University Press, California, 1969, p. 40-42.