The keynote speech was given by Professor Spamann (Harvard Law School). For his bio and publications, see his website. Professor Spamann took us through some of the myths and realities of common and civil law. Here are some takeaways.
There is a lot of discussion about the differences between common law and civil law systems. However, many of these distinctions do not exist. The continued emphasis on material differences often serves to reinforce the perceived superiority of common law - whether to protect it from external influences or to promote its adoption elsewhere. See “Civil V. Common Law: The Emperor Has No Clothes". Here are four of these myths:
- First myth: “the common law is precedent, while the civil law is statute law". Most of the work of US and English judges is to apply statutes.
- Second myth: “case law in the common law works simply by analogizing from facts, without considering abstract rules". Sometimes, the analogy may be quite dominant, but that is rare. In practice, common law is largely rule-based, much like in the Netherlands and other civil law countries. Predictability and consistency in the law require the application of abstract legal principles, making case law more structured than this myth suggests. See the working paper “The Reasons Highest Courts Give"
- Third myth: “common and civil law judges think differently, have a different culture and different ideas about the law". The most popular book on comparative law in the US, and often cited elsewhere too is “John Merryman, The Civil Law Tradition" (Stanford University Press). However, the author provides no evidence whatsoever of the difference way of thinking of civil and common law judges. In fact, an experiment Professor Spamann did involving judges from several common and civil law countries shows that common and civil law judges think alike.
- Fourth myth: “the common law favours freedom of contract, while civil law interferes in the name of good faith". There have now been several in depth studies of this question comparing England to other European jurisdictions, and they have not confirmed this cliché. See for example this article (pdf, 374.9 KB).
Meaningful differences between common and civil law are: 1) the organization of their judiciary, and to a lesser extent: 2) civil procedure.
- Organization: what is common to almost all common law jurisdictions is that they recruit their judges from seasoned practitioners rather than straight out of law school, as is done in almost all civil law jurisdictions. Except the Netherlands and the NCC, where only judges with experience outside of the judiciary are allowed to become a judge.
- Civil procedure: United States (elected judges, civil juries, no cost awards and very extensive discovery) vs the Netherlands (appointed judges, no juries, moderate cost awards and limited discovery). There is movement in the NCC rules towards what is now a common law standard: cross-examination (please note: in the past, common law didn't have cross-examination either!).
Professor Spamann trusts the NCC will interpret its rules always with practicality in mind, and not with abstract - and ultimately not very meaningful - notions such as common law versus civil law.