Law (4): European Law

The reader is encouraged to read this article on the history of civil law systems in the online Encyclopedia Britannica.

Please note that I am not an expert in civil law history or jurisprudence. Although trained in EU law, and occasionally do work with an international element, the overwhelming majority of my work is in English law.

The French Revolution and Napoleonic Wars changed Europe (and, indeed, the world). In France, an overarching law code was established, the “Code civil” or “Code Napoléon”.

Although the process of national codification predates the time of Napoleon, his code was nevertheless influential in Europe and abroad, albeit tailored to national needs and preferences.

While the German and French models of civil law are different, they do overlap. Both share a basic tenet that the role of the judge is not to create law, but to put the spirit of the law into effect in the cases that come before him. In other words, to obey the purpose of the legislators, rather than allow the letter of the law to be used as a means of escaping liability.

Although at first glance the codes appear monolithic, in practice, they no longer cover everything. Non-code statutes, regulations, and treaties play a great role in modern European law. In particular, European Union law, which prevails over the laws of the Member States when the two are in conflict, is very important in Europe today.

The Codes of the European countries typically place a great emphasis on the state. While the state has crept into most areas of life in the UK, the English common law tradition tended to be characterised by a more critical attitude towards the state. This became particularly pronounced in two respects: judicial anger against the courts of equity and judicial curbing of the powers of the Monarch (see the Case of Proclamations, the Case of Prohibitions, and the Case of Impositions).

Lacking precedent (stare decisis), civil law jurisidictions are also theoretically less uniform in their application of the law than common law jurisdictions. One judge is free to decide a similar case quite differently from another judge.

However, we must be careful to distinguish attitudes and philosophies from practice. In the real world, precedent does not always guarantee that like cases are treated alike in England and Wales. A skillful lawyer might persuade a judge to distinguish a case that fails to help him; similarly, a judge may fail to be persuaded to apply a case in the present instance. Likewise, there can be wrangling over whether a wide or narrow ratio decidendi is to be derived from a leading case.

Many cases may fail to be decided properly because relevant precedents were not adduced or because there are no precedents yet. Of those cases that are wrongly decided, only a fraction of affected parties will make an application to appeal, and only a fraction of those will be granted permission to appeal. Once in the appeal chain, it is also possible that a higher appeal court will reverse the decision of a lower appeal court. Thus it can take a long time for a precedent to be created, and longer still for a final precedent to be created.

In Europe, although there may be discrepancies in the initial decisions of novel cases, eventually a body of jurisprudence is created and disseminated and a more uniform approach develops. Although civil law jurisdictions do not formally have precedent, they can arrive at a similar result.

Much could be said about civil law jurisdictions, and the reader should bear in mind that they are not all identical. The amount of interference by the state in the private lives today is found in common law jurisdictions as well as civil law ones. The French inquisitorial approach to criminal law is not replicated in all civil law jurisdictions, nor are all such jurisdictions as strict, controlling and – dare I say – oppressive in matters of inheritance and marital property.

Laws do not exist in a vacuum – they exist in societies. While we may rightly have concerns about some of the underlying values, attitudes, and philosophies that characterise civil law jurisdictions in the abstract, we need to remember that common law jurisdictions are not devoid of problems either.

Indeed, an advantage of the civil law approach is its potential flexibility. Where judges have discretion and the spirit of the law is good, they should be able to impose decisions that are fair, realistic, and culturally-tailored.

I look forward to the comments and thoughts below.

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