The Brief Series: Comparative Law and the Legal Systems
Dr. Monif Loutfy
| DBA, LLM, FCIArb | @DAR | Author | Arbitrator | Independent Expert | Contract Management | Dispute Resolution | Researcher | Learner | Advocating Digitization and Sustainability in Construction |
The Brief Series: Comparative Law and the Legal Systems
The four major legal systems of the world are civil law, common law, customary law, and religious law. However, each country often develops variations on each system or incorporates many other features into the system. Therefore, comparing these laws and finding a methodology for comparative law is crucial.
Comparative law is a discipline that incorporates the idea of comparison into its name, and this alone suggests that its method is somehow special or distinguishable from what comes naturally. Traditionally, one of the ways this happens is through engagement in critical activities that lead to reconsidering traditional modes of thought. Exposure to foreign law provides an exit or an escape from familiar intellectual thoughts by appreciating things that were ignored before.
There is not a single exclusive method that comparative law should follow. However, some elements of other comparative methods may be found in the literature, mainly in legal theory. Based on these writings, we may distinguish six different methods for comparative research: the functional method, the structural method, the analytical method, the law-in-context method, the historical method, and the common-core method. Empirical investigations in comparative research will be carried out.
The traditional simplistic approach to comparative law focuses on accurately describing a particular foreign legal system, what others have written about their domestic law, and accumulating and transmitting knowledge about foreign law and legal families. This approach is pointless, leading to legal convergence as civil law and common law are marked by oppositions as deductive versus inductive, logical and systematic versus pragmatic, rule-bound versus fact-bound, future-oriented versus past-oriented, and so forth.
However, a more recent trend is even more simplistic as they treat different legal systems as mere compilations of information that can be coded numerically as a starting point of quantitative comparative research. New forms of governance also foster this, and the importance of politics challenges the traditional comparison method.
The Comparison
Comparisons between the English, French, and German legal systems can be made based on the following differences:
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1. Legal System: English law is a common law legal system based on judges and case laws, while French and German laws are based on civil legal systems influenced by the Roman legal system and created by various codes.
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2. Codes: French law and German law are contained in civil codes, which are systematic, authoritative, and guiding statutes of broad coverage. These codes set the structures for particular areas of law and mark a new start in the legal life of the nation.
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3. Classification and Structure: Civil law systems, including French and German law, are largely classified and structured, containing many general rules and principles. Conversely, common law is based mainly on case law and lacks a comprehensive conceptual structure.
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4. Source of Law: In civil law systems, the main principles and rules are contained in codes and statutes, which prevail over case law. Case law plays a significant role in common law systems, with earlier judicial decisions serving as precedents for subsequent cases.
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5. Role of Judges: In common law systems, judges have great authority and play a significant role in developing the law through their decisions. In civil law systems, judges primarily apply and interpret the law in codes or statutes.
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6. Academic Involvement: In civil law systems, academics are involved in developing the law, while in common law systems, they are seen more as commentators.
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7. Importance of Statutory Law: Civil and common law systems recognize the importance of statutory law. Common law systems rely on statutes, which judges are supposed to apply and interpret, while civil law systems prioritize codes and statutes over case law.
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8. Approach to Remedies: The German legal system is based on a remedy for protection, while the English legal system focuses on protecting ownership.
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9. Approach to Contractual Claims: In contractual claims, the German system does not consider equity, while the English system may consider the Roman concept of property characterized by rapid and unpredictable changeableness.
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10. Methodology: Civil law systems, including French and German law, typically follow a deductive method, starting from legal norms in legislation and deducing conclusions regarding the actual case. Common law systems, including English law, follow an inductive method, starting with the actual case and comparing it with previously decided cases to determine the binding legal rule.
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11. Conceptual vs. Pragmatic: Lawyers from civil law countries tend to be more conceptual, while lawyers from common law countries are considered to be more pragmatic.
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12. Convergence: Under the pressure of globalization, modern civil law and common law systems show signs of convergence, with many differences becoming less visible.
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It is important to note that these comparisons are generalizations, and there may be variations within each legal system. Additionally, with the movement of European legal integration, there is a belief that the differences between legal systems can be overcome for a Europe-wide harmonization of private laws. However, challenges may arise in preserving the core principles of each system.
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Thank you for your attention.
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1 年Thank you very much Dr. Monif Loutfy for this article. To my knowledge, in the past, most of the countries was based on case low, and they start to convert to code low one by one. up on your experience, which one is more efficient in construction, case low or code low?