4. Influence of common law and civil law
systems on each other
• Tendency think own system is better
– Caricatures of other systems
5. Influence of common law and civil law
systems on each other
• Tendency think own system is better
– Caricatures of other systems
• Is the reality more complex? “Globalisation” of
law, subject to socio-cultural differences?
7. Influence of common law and civil law
systems on each other
• Reasons for the influence?
– EU law (“harmonisation” of law – formal and
informal)
– International law
– Migration of scholars and judges
– Comparative law
– Demand:
• international trade
– Compare: merchant law
• Cross-border movement of persons (economic and
non-economic migrants) – eg family law disputes
• Jurisdictional “forum shopping” eg tax law
11. Influence of common law and civil law
systems on each other
• Examples
– US Declaration of Independence, French
Declaration of Rights of Man and the Citizen
• …to huge variety of national constitutions
– Public law, private law distinction
– Abolition of rule that can cite opinion of dead, but
not living, jurist
– Movement from oral procedure to more written
procedure in common law
– Increase in jury trials civil law
13. Influence of common law and civil law
systems on each other
• Examples
– Increase in criminal defence counsel civil law
– Increasingly active judicial role common law
– Increase in citation of academics common law
– Publication of judgments civil law and increasing
citation of previous judgments – de facto
precedent?
– Increase in use of “codes” in common law – though
often these are codifications of judicial decisions
16. Influence of common and civil law
systems on EU law
• What is the EU?
• Many original features of EU legal system similar
to civil law systems
– European Court of Justice: Unanimous judgments –
no dissenting opinions
– Emphasis on written procedure
– Relationship between national courts and ECJ (Art.
267 TFEU “preliminary reference” system):
comparable to French cassation?
– Role of the “Advocate General” in ECJ comparable
to the French procureur général
– No formal system of precedent
– Judges ask questions at hearing (esp. recent years)
18. Influence of common and civil law
systems on EU law
• Common law features also present
– Importance of judge-made law in EU law
• Lots of citation of previous case law now
– Sometimes expansive method of “statutory”
interpretation (esp. interpretation of founding
principles of the EU Treaties)
– Judges not good at finding “facts” – rely heavily on
parties and/or national courts
19. In turn, EU law influences common/civil
law systems
20. In turn, EU law influences common/civil
law systems
• Eg proportionality in England, Ireland
21. In turn, EU law influences common/civil
law systems
• Eg proportionality in England, Ireland
• Trade law initially most influenced
22. In turn, EU law influences common/civil
law systems
• Eg proportionality in England, Ireland
• Trade law initially most influenced
• “Formal” harmonisation: Member States amend
EU Treaties to allow EU legislation in broader
areas (often with cross-border aspects)
– Eg environmental law
– Eg sex discrimination law
– Eg some aspects of asylum, immigration law
23. In turn, EU law influences common/civil
law systems
24. In turn, EU law influences common/civil
law systems
• “Informal” harmonisation – Joint Network on European
private law
– Eg projects on European Contract Law and European Civil
Code
25. In turn, EU law influences common/civil
law systems
• “Informal” harmonisation – Joint Network on European
private law
– Eg projects on European Contract Law and European Civil
Code
• Some areas remain taboo
– Tax
– Social security
– Education
– Criminal law
• European Arrest Warrant (2003)
• Role of “Eurojust” (2002) network of prosecutors and judges
• Treaty of Lisbon makes possible “European Public
Prosecutor” for cross-border financial crimes
– Rules of general legal procedure
27. Influence of common and civil law
systems on international law
• European Convention of Human Rights (ECHR)
law
– ECHR (1950) preamble: based on “common
heritage of political traditions, ideals, freedoms and
the rule of law”
• Follows from 1948 Universal Declaration of Human
Rights
– Judges include former academics, former judges,
former diplomats
– Not necessarily unanimous judgments
29. Influence of common and civil law
systems on international law
• European Convention of Human Rights (ECHR)
law
– Not always oral hearings – emphasis on written
procedure
• Court may decide to have oral hearings – questions
put to parties
– Rarely investigates facts, though has power to do
so
31. Influence of common and civil law
systems on international law
• International criminal law
– International Criminal Tribunal for the Former Yugoslavia
(1993)
• Not all judges are permanent – some are ad litem
• Much fact-finding, but done by Prosecutor (adversarial)
• Deference to common law system, but changes in Rules of
Procedure to more inquisitorial approach
• Eg Slobodan Milosevic self representation
• Eg Cross-examination possible
• But ICTY as a “third way”?
– few restrictions on admissibility of evidence
– ICTY can order production of new evidence
– No plea-bargaining or immunity
– International Criminal Tribunal for Rwanda (1994) similar
to ICTY
– International Criminal Court (2002)
