Anglo American Law: Civil Law vs. Common Law Systems

Objective of Comparative Law

What could be the objective of comparative law? Objects of the study -> Comparing different legal systems (Italian - American - English ... )

Italian legal system: belongs to the civil law tradition, when referring to civil law we include continental Europe, south America and other nations When referring to common law we include England, Wales, US, Canada (except for Quebec), Australia ... they were all colonies of England. In general this is part of the legal comparison, a discipline that tends to let similarities emerge. When studying legal systems the purpose is to consider that different legal systems have different rules, different history and development ...

Historical Context of Comparative Law

When and how did we start thinking about using comparative law? (= excursus storico sulla nascita del diritto comparato)

• Montesquieu, L'Esprit des Lois: for the first time law seen as a social phenomenon and considers the diversity of the various rights as a product of natural, historical, political, ethnic differences and other factors in the social order.
• 19th century:
  • France: clear-cut closure towards what is foreign, it is the century of codifications and statism.
  • Germany: Savigny and the historical school, law is the necessary result of the internal organisation of the nation and its history.
  • Positivism, from case law or legislative, and the perception of law as an eminently national phenomenon
• 1900-1930: momentum of comparative law:
  • Development of Comparison in the Exact Sciences
  • 'Hague climate': permanent court of arbitration for disputes between states
  • Conventions to unify the rules of private international law
  • German Civil Code and Comparison with French
  • Formation of new states after the war, in legal development
  • Mutual awareness
  • October Revolution and the socialist legal family
• Post World War II: extraordinary technological progress and, to a large extent, a 'need for survival':
  • Law as a social phenomenon in constant transformation.
  • Contribution with research into values, rules and institutions with a tendency to be supranational and universal in scope based on a realistic and inductive analysis of the various legal systems.
  • "It is no longer licit", for practical and historical reasons, to regard law as a purely national phenomenon resistent to external influences.

Codification in Legal Systems

What does codification mean? What is a code? If we take the Italian legal system we consider specific institutions and realize that the civil code is very similar to the French code, rules are often coherent with the others. If we compare it to the English one though, we find enormous differences.

1 di 36Italian 1860s civil code => it was the mirror of the French one, in continental Europe this last one still remains the model of many other codes, while the Italian 1942 code distances itself a bit from the previous one. The actual code has six books (people and family, employment, protection of rights ... ) the previous one only had 3 books and followed the same structure of the 1804 French Napoleon code. We share with France the main rules in legislation, we are a civil law country which resembles the French civil code with some adjustments we borrowed from Germany. The German civil code arrived in 1900, it is different from the French one.

Sources of Law in Anglo-American Systems

What is the source of law in the Anglo American system? The first element of distinction between civil law and common law systems is that in common law countries there is not a civil code, actually very often there is no code at all, for example when considering contract law we don't find anything codified. We need to find another path to reach Anglo American rules.

"CASE LAW" is the main source of law in the anglo American system, more specifically: in common law countries the sentences from higher courts are binding.

Comparison of Judicial Precedent

Comparison: in Italy a lower judge (e.g: giudice di 1 grado) may express an opinion which is divergent with the Court of Cassation (highest court in Italy), the lower court can express an opinion which is different from the one being expressed by higher courts because formally decision are not binding, there's no rule that obliges Italian judges to follow previous decisions. BUT It has to be said that even if they are formally not binding substantially the judges use them as a guide and tend to follow them. Jurisprudence is never binding except for the constitutional court which is strictly related to interpretation.

In common law countries on the other hand, the idea is that the law is generated through case law: judges decisions. In the UK for example, Supreme Court decisions are binding. All the lower courts are obliged to follow the SC decisions.

In the US (federal jurisdiction) things are similar, the Supreme Court decisions are binding.

Contract Law in Different Systems

Comparison: In Italy we find the main essential elements of contracts (form, object ... ) in the code. In the anglo American law system they're somewhere else. Anglo American law is not considered to be a legislative legal system, it is not based on legislation but on sentences from the judges. If we had to find contract law we had to consider mainly previous decisions,, reports, not only legislation. Lawyers often quote from previous cases which are named after the plaintiff/claimant (attore) and the respondent (convenuto). Lawyers, students ... have to seek informations in the cases because the source of law is based on case law and on the stare decisis doctrine. In US or UK law universities students are required to study cases and starting from there they realize the rule.

In Italy we apply a general and abstract rule to a case (deductive method) while Anglo American law systems use an inductive method, they find the rule in the case.

Different Context of Sources of Law

DIFFERENT CONTEXT OF SOURCES OF LAW Why is there this emblematic difference? The answer is in the history of the countries. Historical events are reflected in the actual institutional framework.

2 di 36In our system some concepts are the same as the ones we find in the ancient roman law system, that's because we find our origins in roman law. English and American nations have completely different roots, their legal environment is created through the stratification of legal decisions. They didn't need the authority of roman law and that's why rules are sometimes completely different from ours.

Shared Problems, Different Solutions

We share the same problems with different solutions Example: Art. 1367 mobile product: it is completely different from the roman law. It lets you become the owner of the mobile product and it was created by Napoleon to simplify things. In roman law something else was required and today German law follows the roman law rule: if we shake our hands I do not become the owner, I become the owner when the other gives me the product. English law never followed the roman rule, sometimes we find the same rule in Italy and in England: and the mobile product selling is the case, nothing more is required beside the consent/ will

Nature and Definition of Comparative Law

NATURE OF COMPARATIVE LAW + DEFINITION: We consider anglo American law today in the context of legal comparison: the field of legal studying that aims to navigate similarities and differences between legal systems. Comparative law is not a branch of private law, it is a method of analyzing different legal systems. It has been called as an intellectual activity and the law is the object. Comparative law may be defined as that part of legal science that aims to critically and rationally compare:

• several national legal systems or groups of systems (rectius, the spirit and style of several systems) or
• several institutions (i.e. the way in which different systems deal with certain legal problems and regulate particular aspects of social and economic life)

It is an advanced discipline which compares different rules in different legal systems. It's a structural method that often starts from history. The idea is that legal comparison may be dividend into 2 main branches:

1. MACRO COMPARISON -> which involves entire legal systems (eg: sources of law)
2. MICRO COMPARISON -> considers individual institutions or singular problems (eg: selling a mobile product)

Differences in Civil and Common Law

Examples of differences between civil law and common law: Obligation: contracts, torts, every other source in conformity of the legal system. For what concerns torts the rules are extremely different in the two legal systems, the aim of civil liability is different: In Italy is to compensate the damage: the author of the tort has to give the same value of what he's damaged. If the author acts with fraud or negligence civil liability is the same. The purpose of civil liability is compensatory In the US legal systems the purpose can be very different: punitive damages exist as well, the author of the tort can be condemned to pay an enormous amount of money, disproportionate from the damage he's done.

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Comparative Contract Law

COMPARATIVE CONTRACT LAW

Civil Law Characteristics

CIVIL LAW Legal mentality tends to be more DEDUCTIVE Statute Law continues to be the «sole» source of law

Common Law Characteristics

COMMON LAW Legal mentality tends to be more INDUCTIVE Case law is a source of law alongside statute law Value of the precedent and legal principles Attention to the facts of the case when examining case law Majority Vote Dissenting Opinions

Restatements in Common Law

The Restatements are a detailed analysis of the decided cases, drafted with an eye to discerning the various principles that have emerged from the courts and another eye to outlining the best solutions adopted. They are Issued by the American Law Institute (ALI), composed by prominent US judges, lawyers and law professors. Topics of a restatement can be: Contract Law, Torts, Agency, Conflict of Laws, Judgements, Property, Restitution, Security and Trusts.

Language and Contract Definitions

Main issue: the use of language In our Italian legal system a contract refers to: an agreement between more parties to establish, regulate or terminate a particular relationship. This definition doesn't fit to every leal system, and there are other examples of differences between legal systems:

• marriage has its own rules in Italy, when talking about contracts here we exclude marriage. On the other hand France considers marriage as a contract.
• In Italy if I want to give someone a gift as a donation, that will configure as a contract, while in the US or UK it is not, it is a "deed"

In common law there Is not a definition for the contract because the agreement uses a different term CONSIDERATION = "rapporto sinallagmatico": there Is something in exchange, in common law if there is nothing in exchange that is not a contract (When referring to "Statute law" we mean = legislation)

Aim of Legal Comparison

AIM OF LEGAL COMPARISON: most comparative lawyers consider the first aim of comparative law to be knowledge, for some scholars knowledge is the primary aim. They consider comparative law as a science: managing to understand other legal systems provides a better knowledge about our own legal systems. That's the reason why most comparative scholars think of the subject as mostly theoretical.

Legal comparison has also a practical relevance: Comparative law may also operate as an aid for judges in the interpretation of international law, not when the meaning of a rule is clear but when there is a gap or an interpretation is doubtful. In those cases judges resort to comparative law to achieve the best decision. Example: our Court of Cassation in the Englaro case: there were many references to other jurisdictions. Italy is part of the European convention of human rights (Rome 1950s), to understand the application national judges take a look at how other judges in other countries used it.

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