Common law and Civil law
Common Law and Civil Law: Beyond the Clichés
Attending one of the interesting conferences organised by our regional arbitration center (AIAC) a few days ago, at home in Kuala Lumpur, I was able to observe that ignorance of the "other system" is not limited to civil law lawyers.
Indeed, I was surprised when an eminent and brilliant Malaysian speaker was unable to adequately answer a question from the audience about the difference between common law and civil law. Or, more precisely, he responded, for lack of a better answer and after hesitation, with the banal yet false formula that common law is based on case law and civil law on regulations.
A civil law lawyer would most likely have answered the same thing, but in reverse, which is hardly any better. It's strange how, several centuries after the entry into force of the French Civil Code, this gulf of incomprehension persists.
A major misunderstanding to dispel
So, to put it simply, common law and civil law are both based on case law and regulations, and it is inaccurate to say that common law relies more on case law and civil law more on regulations. It is the interaction between the two sources of law that distinguishes them.
In common law, case law is an autonomous source of law. It not only interprets regulations; it fills in gaps in them, which, moreover, can exist within a legal text itself and not only in the interstices between two legislative texts. In civil law, case law is purely interpretative of both the law and the regulations.
To be convinced of this, one need only read a judgment from a common law court and a civil law court side by side. In the first case, the judge (he is authorized to do so, and it is even his duty if he sees it useful) formulates an opinion on what he believes the law should be in relation to the factual situation submitted to him at first instance or on appeal, a broader assessment than the simple application of the law that will guide his decision.
In the second case, the judge is careful not to do so (he is prohibited from doing so) and interprets the law as best he can, refraining not only from deviating from it (like the common law judge) but also from adding to it.
The True Role of Case Law in Common Law
In civil law, anything that can contribute to the interpretation of the law is welcome, and it welcomes legal doctrine, which plays only a secondary, though not insignificant, role in common law. In common law, it is primarily the "grand principles" established over time by case law that serve as an "intellectual" guide and a source of reflection.
Of course, and this is a common misconception among common law jurists, believing that this is not the case, the civil law judge takes case law into account and respects it in reaching his or her decision. But unlike his or her common law colleague, he or she is not strictly bound by this case law, other than the risk of invalidating his or her judgment if he or she deviates from well-established principles, because this case law has only interpretative value, and in the civil law system, only the legislative or regulatory text is a source of law.
What ensures the preeminence of common law jurisprudence is the continuous chain of decisions that serve as primary sources of law, sometimes over a long period of time, whose origins can be traced back to judgments of nineteenth-century English courts, constituting coherent "blocks" of legal principles that are juxtaposed with the legislative and regulatory corpus.
Common Law and "Soft Law”
These principles have been developed not only by the courts of the place of the dispute, but also by the case law of other jurisdictions governed by common law, which have only indicative (persuasive but not binding) value, but to which the judge may refer in forming his or her opinion.
The oldest precedents to which the common law judge refers in formulating his or her judgment, even today in the Asian jurisdictions where I am a practitioner, may be decisions of the Judicial Committee of the Privy Council or of the House of Lords dating back to the nineteenth century.
Furthermore, this "soft law" typical of common law frequently, and even systematically, incorporates, at the High Court level and above, more recent decisions from courts in Australia, Hong Kong, India, Singapore, and New Zealand. This varies according to a "mix" depending on the jurisdiction where the dispute is located; for example, Malaysian courts refer more often to those of their colleagues in India than those in Hong Kong.
The "great principles" of common law in the broad sense, incorporating the soft law born from the integration in time and space of its jurisdictions, naturally bring to mind the "great decisions" of administrative litigation in France. Indeed, for a French lawyer wishing to better understand the common law's mode of reasoning, the closest and most accessible example is administrative law. In both cases, moreover, another similarity, the greatest principles arise from the most banal factual situations where the interests at stake are sometimes minimal.
“Peaceful Coexistence” Between Jurisprudence and Legislation
The role of “case law” in the common law system is also defined, without any competition between it and the law as it might be understood or read, by the rule that case law constitutes the “default” solution when the law (but only in this case) does not provide an answer. Case law thus coexists with the law, sometimes explicitly.
An example of this coexistence can be found in section 465 of the Hong Kong Companies Act (Cap 622), which codifies the directors' duty of care, skill, and diligence based on common law principles but replaces them "in place of the common law rules and equitable principles as regards the duty to exercise reasonable care, skill, and diligence owed by a director of a company to the company," while referring in section 466 to the common law to define the sanctions for breaches: "The consequences of breach (or threatened breach) of the duty specified in section 465(1) are the same as would apply if the common law rules or equitable principles that section 465(1) replaces applied."
This "peaceful coexistence" is further demonstrated by the limitation imposed on the "codification," which does not extend to fiduciary duties, the other aspect of directors' responsibilities, the criteria for which, as established by consistent common law jurisprudence, are generally considered to comprise four aspects: acting in good faith in the interests of the company, exercising one's powers for an acceptable purpose, avoiding conflicts between one's private interests and the interests of the company, and not making hidden profits.
This second aspect, just as important as the first, of the directors' liability to the company in which they hold office, is left by the Hong Kong legislature to the exclusive jurisdiction of common law case law.
We have seen that the "grand principles" of common law in the broad sense, incorporating the soft law born from the integration in time and space of the jurisdictions belonging to it, are a unique characteristic of this law. Certainly, they can be compared to the "great decisions" of administrative litigation in France, and indeed, for a French lawyer wishing to better understand the common law method of reasoning, the closest and most accessible example is administrative law. In both cases, and another similarity, the most fundamental principles arise from the most banal factual situations where the interests at stake are sometimes minimal. The comparison is even more troubling when one considers another characteristic of common law.
In conclusion, a difference that is just as real but more complex than expected
The difference between the two systems is therefore both less clear-cut (statutes and case law are both sources of law) and more subtle (case law is subordinate to the law in civil law, but only by default, but with the status of an independent source of law in common law) and should encourage lawyers trained in one or the other system to exercise caution when venturing to the other side of the barrier.
In practice, the reasoning of a lawyer from either legal culture when formulating advice for their client is not so different, since they must take case law into account. However, this dimension is somewhat optional (although highly recommended) in civil law, whereas it is imperative in common law.
Jurisprudential research in common law is more difficult, since it must integrate the entire chain of precedents (including soft law precedents if they can serve the client) without omitting a single significant one, which is disconcerting for the lawyer, and even more so for the client from a civil law background. Since direct interpretation of the law is insufficient to reflect the state of the law, the lawyer practicing common law cannot simply read and analyse statutes; they must rely on the autonomous law of case law.
Hence an approach based on "authorities" that does not lack transparency, but whose complexity can give this impression to a French client. Appearances, however, are only deceptive to the extent that they are not dispelled. It is the responsibility of the bicultural lawyer in civil law and common law to be attentive to the dual technical nature of the case, but also and above all to explain and facilitate the fluidity of exchanges in order to advise or defend his client as effectively as possible.
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The content above is purely for informational purposes, relating to a selected overview of legislative, regulatory and case law developments in the relevant geographical area, which is not and does not claim to be exhaustive.
It does not constitute legal advice in relation to any particular case and should not be regarded as such. A more detailed doctrinal study on any of the topics mentioned may be requested.
Philippe Girard-Foley is a Registered Foreign Lawyer accredited by the Supreme Court of Singapore before the Singapore International Commercial Court – Certificate of Full Registration under Section 36P Legal Profession Act (Chapter 61).