COMMON LAW VERSUS CIVIL LAW.
The map is highly suggestive of the disparity and the domination of the Civil law model in the world. It has become established in about 150 countries, whereas Common law only concerns 80 countries. Many blockchain experts come from Common law countries and thus think about the Blockchain’s impact only through their own legal system. They don’t necessarily realise that their own legal system in not representative.
In Civil law countries, it is widely agreed that the legal system is more protective/ stable/ fair. Laws are established explicitely/ Yet lawyers in Common law countries are particularly proud of the flexibility of their system. Quick adaptation to cyclical variations without the need of a major legal intervention : the judge makes the law. Today, many hybrid system have emerged. The Blockchain may be one of them.
Most nations have adopted one of the two major « legal traditions »: Common law or Civil law.
The Common law tradition emerged in England during the Middle Ages and was exported to British colonies across continents. The Civil law model emerged in continental Europe at the same time, and was applied in some of the European colonies such as Spain, France, and Portugal. Civil law was also adopted in the nineteenth and twentieth centuries by countries which had very distinctive legal traditions, such as Russia and Japan. Those countries had to reform their legal system in order to gain economic and political power comparable to that of western European nation-states.
For an American citizen who is familiar with the terminology and process of his own legal model, (based on English common law), civil law models can be confusing.
I. COMMON LAW.
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. Common law relies on scattered statutes, which are in fact legislative decisions. It is largely based on precedent, that is to say based on the judicial decisions that have previously been made in similar cases. These precedents are maintained over time through the records of the courts and are historically documented in collections of case law known as yearbooks and reports.
The precedent to be applied for each new case is determined by the presiding judge. Consequently, judges have a great role in the shaping of American and British law.
The Common law model is a quite procedural model : it favors form over substance. Historically, because of the random results of such justice, the unsatisfied litigants relied more and more often on the King, who alone could prevent the abuse of rights in the name of conscience and fairness. The increase of such petitions resulted in the appearance – when the common law proved incompetent – of « fairness rules » known as rules of equity.
Common law is an adversarial system, based on a contest between two opposing parties and a judge who moderates. A jury of ordinary people, without any legal training, takes position on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
Basically, the judge uses inductive reasoning about the facts.
II. CIVIL LAW.
Civil Law, in contrast, is codified. Countries with a civil law organisation have comprehensive and continuously updated legal codes that specify :
– all matters capable of being brought before a court,
– the applicable procedure to those matters,
– the appropriate punishment for each offense.
These codes distinguish between different categories of law: substantive law that determines which acts are subject to criminal or civil prosecution, procedural law that establishes how to determine whether a particular action constitutes a criminal act, and penal law that indicates the appropriate penalty to each offense.
In a civil law system, the judge’s role consists in establishing the facts and applying the provisions of the right code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he works within a framework established by a comprehensive codified set of laws. He’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.
Basically, the judge uses a deductive reasoning about the facts.
We can oppose a form of individualism generated by the Common law model to the predominance of collective interest granted by Civil law. The essential role played by codified laws in the Civil law model is undeniable and contrasts the preponderance of judicial decisions in Common Law.