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.
