Common Law – Civil Law: The Great Divide?

Description

This book offers an in-depth analysis of the differences between common law and civil law systems from various theoretical perspectives. Written by a global network of experts, it explores the topic against the background of a variety of legal traditions.Common law and civil law are typically presented as antagonistic players on a field claimed by diverse legal systems: the former being based on precedent set by judges in deciding cases before them; the latter being founded on a set of rules intended to govern the decisions of those applying them. Perceived in this manner, common law and civil law differ in terms of the (main) source(s) of law; who is to create them; who is (merely) to draw from them; and whether the law itself is pure each step of the way, or whether the law’s purity may be tarnished when confronted with a set of contingent facts. These differences have deep roots in (legal) history – roots that allow us to trace them back to distinct traditions. Nevertheless, it is questionable whether the divide thus depicted is as great as it may seem: international and supranational legal systems unconcerned by national peculiarities appear to level the playing field. A normative understanding of constitutions seems to grant ever-greater authority to High Court decisions based on thinly worded maxims in countries that adhere to the civil law tradition. The challenges contemporary regulation faces call for ever-more detailed statutes governing the decisions of judges in the common law tradition. These and similar observations demand a structural reassessment of the role of judges, the power of precedent, the limits of legislation and other features often thought to be so different in common and civil law systems. The book addresses this reassessment. Preface Contents Editors and Contributors Introduction Civil Law, Common Law, and the Data of Jurisprudence 1 Introduction: A Methodological Foreword 2 The Challenge of Legal Pluralism 3 Narrowing the Inquiry 4 On the Diversity of Legal Families 5 Convergence? 6 Implications for the Philosophy of Law References `The Law Works Itself Pure´: Reflections on a Cherished Trope 1 Sentiments 2 Murray v. Mansfield 3 Splitting Hairs 4 The Way You Make Laws for Your Dog 5 The Law Works Itself Dure 6 Memories of Times Past 7 When in Rome 8 The Gravitational Force of Precedent 9 Slides or Gains? References Case Law The Chain Novel and Its Normative Fine Structure in Civil Law and Common Law: Dworkin, Brandom and Law´s Normativity 1 Introduction 2 Dworkin´s Chain Novel Analogy and Brandom´s Normative Fine Structure of Law´s Chain Novel 2.1 Dworkin´s Law as Literature Approach: Law as an Interpretive Enterprise 2.2 Brandom´s Pragmatist Approach and the Chain Novel´s Normative Fine Structure 2.2.1 Brandom´s Critique and Appraisal of the Law as Literature Metaphor 2.2.2 Mutual Recognition as the Key to Law´s Normativity 2.2.3 The Game of Giving and Asking for Reasons 3 The Chain Novel of Civil Law 3.1 Law´s Chain Novel: A Common Law Theory Only? 3.2 Common Law Versus Civil Law: Case Law, Statutory Law and the Matter of Style 3.2.1 Case Law Versus Statutory Law 3.2.2 Law´s Normativity in the Context of Statutory Law 3.2.3 A Matter of Style 3.3 Making the Civil Law´s Chain Novel Explicit 3.3.1 Players of the Law 3.3.2 Law as a Discursive Practice in the Context of Legislation 3.3.3 An Illustration of the Civil Law´s Chain Novel 4 Conclusion References The Civil Law as the Foundation of the Common Law: Roscoe Pound Considers the Origins of the Common Law 1 Two Legal Systems 2 The Common Law Tradition 3 The Civil Law Tradition: The Codes 4 Foundational Principles and Differences Between Common Law and Civil Law 5 Judge-Made Law 6 Roscoe Pound and the Spirit of the Common Law 7 Common Features of Common Law and Civil Law 8 Conclusion References Tree Diagram or Pyramid of Norms? 1 Introduction 2 Stairway Model 3 Objections 4 Civil Law 5 Common Law 6 Conclusion References The Invisible Foundations of Originalism 1 Introduction 2 Originalism: The American Paradigm for Constitutional Interpretation 3 Legal Positivism: A European Tradition 4 Originalism Coupled with Legal Positivism 5 The Positive Turn 6 Two Kinds of Positivism: For and Against Originalism 7 Tacking Stock References Presumption(s) of Correctness(?): Comparing the Methodological Relevance of Precedents in Civil Law and in Common Law Systems 1 Introduction: Facts, Norms and Adjudication-The Methodological Stake 2 The Role of Judicial Jurisprudence in the Construction of Adjudication in Civil Law and in Common Law Systems 2.1 Formally Juridical Reasoning in Adjudication: Deductive Decisions 2.2 Materially Juridical Reasoning in Adjudication: From Finalistic to Judicative Decisions 3 Judicial Jurisprudence and the Presumption(s) of Correctness(?) 4 Beyond Institutional Bindingness, the Methodological Correctness of Judicial Jurisprudence References Profiling the American Judge: A Comparative Argument About Ideological Conceptions of Judging 1 Introduction 2 Comparative Arguments 2.1 Accentuating Hardware: Institutional Differences 2.2 Attentiveness to Software: Contrasting Ideologies 3 The American Paradigm of Judging 3.1 Legal Indeterminacy 3.2 Judicial Statesmanship and Policymaking 4 Conclusion References Two Worlds of Legal Scholarship and the Philosophy of Law 1 Introduction 2 Scientia Iuris 3 The Common Law 4 Transcendental Nonsense 5 Skills Training as Subversion 6 Hiding the Ball 7 Doctrine Plus Theory 8 Interdisciplinarity 9 The Larger Picture 10 The Legal Relation 11 Conclusion References Is China a Continental-Law Country? 1 Introduction 2 Modern Chinese Legal Development and Its Historical Logic 3 The Architecture of the Contemporary Chinese Legal System 3.1 Private Law: Continentalization with Common-Law Characteristics 3.2 Criminal Law and Procedure: Socialist, Continentalization, and Common Law Elements 3.3 Public Law: Socialist Grounding and Influence of American Law 3.4 Ancient Chinese Tradition 4 Conclusion References Dworkin and the Aspirations of International Law 1 Introduction 2 Kelsen and the Existence Puzzle 3 Hart on International Law 4 Dworkin on Hart on International Law 5 From Fit to Justification 6 Dworkin´s `New Philosophy of International Law´ 7 Interpretivism and Illegality 8 Does Interpretivism Make a Difference? 9 Sovereignty and Objective Validity 10 Dworkin, Kelsen, and the Aspirations of International Law References