I.
INTRODUCTION TO THE COMPARATIVE METHOD [pp 15-26; 28-40; 4453] a. Comparative law: Field of Comparative law founded around the turn of the 20 th century by European scholars who wanted to gather information about other laws. It is everything below international law, which is the thin film over the superstructure of law. The field of comparative law is distinct from other fields such as international law, conflicts of law, legal history, legal ethnology, legal anthropology, and sociology of law. Comparative law is the study of foreign law. It is the comparison of law; it is more often than not descriptive, yet it can be truly comparative. i. Conflicts of law: comparative law started in U.S.A. as sort of conflicts of law ii. Legal History: tells what has happened in the past regarding the law iii. Legal Ethnology: attempts to classify legal systems by putting them in sets and categories iv. Legal Anthropology: does somewhat same thing as Legal Ethnology. v. Sociology of Law: tries to look broadly at law and how it functions in society b. Advantages offered by Comparative method i. Deeper perspective of own legal problems ii. Expands the range of possible alternatives for practice or reform iii. Provides alternative for practice or reform that have already been tested iv. Helps isolate the factors which have led to a real innovation in a particular problem v. Helps us predict whether a transplant will be successful c. MAJOR THEORIES i. THEORY OF PROGRESS: Pound’s article pp 15 - the localities must progress. Criticized local law; questioned the “worth of local law” experience. He is getting at that the best approach to local law should be found and then adapted everywhere ii. CONVERGENCE/DIVERGENCE AND HARMONIZATION/UNIFICATION 1. (i) and (ii) deal with Time (you need to determine how far to go back to compare/contrast and draw conclusions) and Theory versus Practice 2. Convergence: e.g. the U.S. and Britain are adapting and sharing laws a. Merryman says civil law judges are becoming more like common law judges in that civil law judges are using more reasoning and thinking about precedent. i. Civil Law becoming more like the Common Law: “Civil law judges are becoming more consciously active, less inclined to conform to the image of a passive bouche de la loi and thus more like common law judges.” Merryman article pg 18 3. Harmonization and Unification used by Merryman to describe
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similar trends that lead to convergence a. WWII boosted idea of harmonizing law in Europe iii. LEGAL TRANSPLANTS: legal systems change by borrowing from other legal systems a. Notion of ISOMORPHISM - There must be basic similarity between what is brought into the legal system (usually another law) and the legal system itself for the transplant to work 2. Watson’s article pp 46-47 a. General Respect for Donor system: “the donor system may be chosen because of the general respect in which it is held”; “ the important fact is that once a system is regarded with respect, its rules will be borrowed even when the particular rule is inefficient and inappropriate” b. National Pride: “national pride may determine that borrowing should be made, or should be restricted, from some particular system” c. Language and Accessibility: language and accessibility influences the choice of foreign law to be adopted, and is independent of the quality of the law. d. History: past history, such as if a country was a colony of Britain 3. Watson: Every legal system is limited to what a government can accomplish through the threat of force, and what the ingenuity of lawyers can accomplish in the interest of themselves and their clients. Beyond that, there is little connection between law and societies that make legal needs different from society to society. It doesn‟t matter which legal system you compare, only that you are careful about the kinds of conclusions you draw. If you don‟t see a strong connection between law and society, then you don‟t care so much about which countries you are comparing. iv. DIVERSITY: Robert Gordon and Bill Alford say that we should appreciate the difference between the laws of other countries; the goal is to find out about the law. Alford says we should use “Thick Description”, which is used in anthropology and says to use in depth description. Alford says grand theory should be avoided when dealing with comparative law v. RELATIVISM: 1. Clark’s article pp 26: View of legal system will largely depend on our perspective d. The founders of the field of comparative law shared these characteristics i. Romanist (legal historian): specialty was classical Roman law. Major codification of law was in classical Rome. Looked back to classical Rome because they thought the form of the code was the best; looked back to classical Roman law because it had influenced much law and the notions behind law, e.g. K and family law
2
II.
Generalists: Romans thought you could learn about many laws; they could speak and read many languages in order to learn many laws iii. Looked favorably on integrating disciplines iv. Hoped for creation of universal law v. Schooled in the codes and legal methods of the 19 th century vi. Lived through WWII vii. Worked for unification of Europe and expansion of international law viii. Evolutionary Functionalists: (a.k.a. Functionalism) 1. Functionality: Problem-oriented approach; casebook pg 44 --“in law the only things that are comparable are those which fulfill the same function” a. Most American lawyers look at legal system from functionalist perspective – problems that need to be solved 2. Convergence and harmonization are subsets of Functionalism a. Functionalists strive to see similarities or patterns in legal systems. 3. Law and society separate but related 4. Societies have needs – you could point to a society and figure out what it needs, e.g. the problem of what to do with people who are incompetent in the eyes of the law 5. Believed in progress 6. Law responds to meet society‟s needs, and law‟s response changes as society‟s needs change 7. Believed that all legal systems face the same problems and solves these problems by quite different means though very often with similar results 8. Believed that the problem or questions suitable for investigation needed to be boiled down to its most basic elements (functional terms), and that the problem must be stated without any reference to the concepts of one‟s own legal system a. E.g. how does a person control the disposal of his wealth long after death b. E.g. how does a person escape from an unintended agreement 9. "If law is seen functionally as a regulator of social facts, the legal problems of all countries are similar. Every legal system in the world is open to the same questions and subject to the same standards, even countries of different social structures of different stages of development." (Kotz, Intro to Comparative Law, p 44) 10. Major limitation of Functionalism is that it suggests a distant view of society. ORIGINS OF EUROPEAN LAW: 500 –1500 A.D. [pp. 265-307; 3316-339; 399433; 4345-457; 476-494; 505-507; 507-534] a. What is difficult about finding out about old European law? i. Origin of law NOT necessarily written down, so hard to find ii. Distance in time makes it hard to find customs (laws that were not
ii.
3
b.
c. d. e. f.
written down) iii. Many different laws were specific to different tribes, e.g. diversity 1. Early law was customary iv. Diversity of custom: leads to question of what is Europe? v. Thus where do we look (what is Europe) We are looking at the origin of European law because comparativists believe those were the most seminal (sophisticated) laws and those influenced the latter civil codes Comparativist believe that the codes were the most significant in the world at the time How far back do we go to find the “origin” and where do we stop going back. The authors of the book go back to 500 A.D. Professor says be weary of “periodization”: that is, be skeptical of people who choose dates because they may have an agenda Roman Law i. Civil legal systems are derived from and influenced by Roman Law, particularly the Roman law of the late Roman Empire which was revived in Europe after the Dark Ages. This influence extends to the sources of law and the structure of the legal system as well as some of the institutional concepts. ii. Roman law was very patriarchal and did NOT really fit with the time; it was rather lazzie fare iii. When Romans took over a territory, they either merged Roman law with the conquered people‟s law or obliterated the people‟s law and imposed Roman law iv. Movement of people led them to being exposed to many different laws and changing of boundaries or rulers exposed them to different laws 1. When people move and events happen, legal questions arise and now must decide which law governs a. Usually had to decide who person was to find what law applied b. Thus if Roman in France, then Roman law applied 2. Romans gave us personal jurisdiction – the person carried the law with him/her 3. Race was another way to distinguish in order to figure out what law applied to the person 4. In short, where you were from was important v. Deciding the conflicts of laws question showed that the law was NOT chaotic, instead it showed society was sophisticated vi. Diversity of law by territory did NOT matter. People relied on the idea of personal jurisdiction; people did NOT care for the uniformity of law in a territory vii. Local custom – what we consider natural law- comes from divine origin; it was supposed to spring out of the conscience of the person viii. Local customs were linked to people‟s consciences, which were supreme over Canon law and secular law
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On the other hand, Canon law usually deferred to local custom; however, it did regulate marriage law x. Must know Canon law to understand origins of European law 1. Canon law: Gratian organized it in easy way to understand and apply xi. Roman law did influence Canon law but with Gratian‟s codification Canon law took on a new look xii. Canon law was a huge influence on European law 1. Thus Roman law and Canon law were great influence and did NOT care for the having unity by following territorial law xiii. The Christianizing of the territory gave people a sense of stability g. Roman Law and Tribal Law: began to diverge and continue to diverge today i. TRIBAL LAW 1. Had geographic differences; it was important in Northern Europe 2. It was NOT written, rather it was an ORAL tradition a. Note that in England, Scotland, Ireland (northern European countries) law students learned the law by listening to other lawyers argue cases before the courts and they would memorize precedents 3. There was oral ceremonial approach to law that grew 4. Tended to feudal political system and structure – it was hierarchical BUT very flexible and loose; note that feudal system was decentralized 5. It was affected by ecclesiastical law but ecclesiastical gave deference to tribal law; with marriage local custom won out ii. ROMAN LAW: 1. It was important in Southern Europe 2. It was written law and the affected where you looked for the law, gathered proof, how to own property, form Ks, and how to study law (read books) -- The law students would pay fees to monks to teach them the law 3. There was a centralized system that focused on territorial unity and kingdoms 4. Influenced family law (yet family law was mainly affected by canon law) and wealth transfers 5. Marriage was governed by canon law h. NOTES: i. Tribal law and Roman law were well formed by 1100-1200 A.D. ii. In 1200-1500 A.D. Roman law swallowed up Tribal law 1. Effects seen in Germany and France a. German law just succumbed to Roman law b. France gave way a little slower because Roman law was injected into French society over time iii. Roman law overtook Tribal law because Roman law was linked to the superstructure and it was centralized; thus rulers in Northern Europe found it attractive because they could rule with it and Northern European
ix.
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leaders became more ambitious to rule over vast areas of land and people through centralized power. In short, Roman law served ambitious rulers well. iv. Globalization of trade lead to rise of Roman law, and trade influenced Roman law taking over Tribal law v. As Tribal Customary Oral Law was written down, the law was changed; this occurred maybe because writer changed it or because the writer heard something different than what was actually said vi. There was emphasis of uniformity of law across territories 1. Impracticability of personal jurisdiction a. It broke down because it was hard to classify people since there was increased intermarriage of the races and there was increased movement of people i. England was very resistant to Roman law i. In this period, law was still NOT written down in England ii. Usage and custom were still seen as a source of law iii. Note that oral law curtailed judges power because judges CANNOT deviate from the huge source of authority within the oral law AND oral law increased judges power because when parts of the oral law changed, others may NOT know it changed BUT judges knew it changed; also lawyers may remember things about the law differently, yet judges have much more discretion as to stating what the law is iv. At this time, the legislature was weak; the judge had power. The judge‟s pronouncement became the law. However, later the law was written down thus enhancing judge‟s power. j. What law fills in the Gaps? (When there is a case of first impression) i. In England judges filled in the gaps; NOT the legislature. Note that the Kings set up the Court of Equity where judges had discretion ii. Writ procedure defined the causes of action and judges defined these categories iii. Note that England was an exception as to what was going on in the rest of Europe at that time. k. Europe: France during the eve of the French revolution i. Royal courts run by King BUT judges had huge discretion and because of this the judges eventually became corrupt 1. Judges could pass their judgeship, which furthered corruption ii. Revolution came about because of hatred of the judges and also because of hatred of the church iii. End of 18th century their was a revolution by the serfs but it was led by French aristocracy who had animosity against the King iv. Revolution started trend toward demolishing everything 1. Dismantled parlements (or political units) and the church 2. People wanted totally knew institution built from the ground up v. Napoleon came to power; he won the peoples hearts by his military accomplishments 1. He wanted to create law common to man, that is a law all men
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could understand 2. He had a commission made up of educated legal scholars and lawyers create the French Civil Code l. Germany during the same time as the French Revolution i. German scholars paid attention to the French in order to help them modernize German law ii. Savigny said that Germany should wait to codify the law; he thought French code developed too quickly 1. He said Germany needed to look toward the past and to the German culture while forming the law 2. He wanted input from everybody; Unlike France who did NOT consult the aristocracy and NOT the church iii. Savigny had the idea of Volksgeist: “Civil law has a definite character which is the product of a people's specific character, just as language, customs or constitution. These expressions are linked into one whole by the people's common convictions, by the feeling of an inner necessity which excludes all notions of an accidental or arbitrary genesis of such expressions. Because of the historical character of the legal system, the law must be approached mainly as law based on a plurality of legal systems (Gewohnheitsrecht). Savigny, however, has some misgivings as to the accuracy of this definition. The idea of customary law emerging from inner and tacit forces must be juxtaposed to a legal system based on the arbitrary decision of a lawgiver. The stress on a law emerging from history enables Savigny to advocate the common German legal system.” CITE: http://etext.lib.virginia.edu/cgilocal/DHI/dhi.cgi?id=dv4-66 iv. Savigny, like Napoleon, had a commission of scholars draft the German code. v. Merryman article pg 479 1. “Instead of trying to discover true principles of law from assumptions about man‟s nature, as the French did under the influence of secular natural law, the Germans sought to find fundamental principles of German law by scientific study of the data of German law: the existing German legal system in historical context. Rather than a textbook for the layman, the German Civil code was thought of as a tool to be used primarily by professionals of the law.” m. A Dichotomy Used/Found in Europe in 1799 i. Ahistorical Approach: used by those in the French revolution 1. Think and come up mechanically with the best law 2. Abstract 3. It is static (the law is unchanging) 4. It is very malleable and allowed for the quick change over to the code 5. Some nature of rights are ahistorical, e.g. Civil Rights for blacks a. Never had before, BUT should have it now even though
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n.
o.
p.
q.
forefathers did not think of it 6. Modern legislatures take ahistorical approach to making law i. Historical Approach: A. Law is a product of the peoples experience B. Empirical: Have to do empirical research to create the law C. Law is changing a. Like the common law: change happens over time and the courts create the law East Asia before 1500-1600 A.D. i. East Asia includes Korea, Siam (Thailand), Japan, and China ii. East Asia system was “essentially penal”; this was true in China, Siam, and Korea East Asia i. Penal Codes highly developed ii. Litigation 1. Civil mediation 2. Criminal: more formal than civil cases; there were “fairly formal procedures” 3. There was an administrative aspect in the litigation of China, Siam, and Korea 4. This was NOT true in Japan because at the time there was NOT a centralized bureaucracy iii. Religious roots iv. The code of law came to people from heaven v. People believed the Rulers had a direct line to god; god told the Ruler the laws vi. Administrative codes were highly developed 1. There were great detail; e.g. told how to conduct hearings; e.g. how people were promoted in the system 2. Note that Canon law was highly developed in Europe at this time vii. Is East Asia law fundamentally different from European law? The course book says YES Imperial China: Administrative and penal in nature i. Law was used to regulate the state 1. From 200 A.D. to 1911 - imperial Chinese law represented a detailed set of administrative regulations with penal proscriptions and elaborate punishments. 2. Lacked any notion of private ordering by law. No comprehensive corpus of legal principles designed to govern private interactions, except so far as it protected the state‟s interests. 3. Generally: do NOT bother the state with your arguments. Get it figured out on your own. Law is a secondary source of social control Siam: Based on Hindu Religious text i. The Hindu dharmasatra, or laws of Manu, dictated Siamese law for centuries.
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ii. iii. iv. v. vi.
vii.
Monarch‟s principle duty is to govern Litigation and lawsuits are NOT equitable to Roman law. Essentially penal – NOT regulation of private conduct. Law was an instrument of the government designed to maintain and perpetuate the existing political and social order. The Three Seal Code incorporated the Indian moral-ethical code (through introductions intended to lend sacredness to the law) into primarily secular matters. Casebook pp 400 – “Litigation and lawsuits in the Kingdom of Siam should NOT be equated with a system of private rights and duties similar to those in Roman law. Law in the Hindu-Buddhist tradition of Siam, like that in China, was essentially penal. In Siam, no less than in Imperial China, law was an instrument of governmental power designed to maintain and perpetuate the existing political and social order.” Chinese law and legal concepts profoundly impacted Korea Penal code of Ming Dynasty was incorporated almost wholesale, with alterations by Korean legislation. Rationality was key for Yi Korea bureaucrats 1. Imposition of order on the administration of justice and the establishment of systematic disciplinary reform 2. Ming penal code aided this goal Korean law developed its own regulations: 1. Tax and population policies 2. Ritual matters 3. Military organizations 4. Slave ownership laws and practices were different from China 5. Criminal code remained tied to China throughout, though
r. Korea i. ii. iii.
iv.
s. Japan i.
Historically lacked unity; lacked centralization of government; warring factions 1. By the 13th century, the throne lacked administrative powers; warrior caste was organized where loyalty and service were exchanged for protection and reward 2. 16th century - created a system of isolationism and a re-structure of social order. a. Emphasis on negotiated settlement of disputes and mediation ii. Japanese citizens were regulated less by law and more by village custom iii. Law enforcement by adjudication; no need for policing of policies in this order. Citizens prompted litigation, not government 1. Cheaper 2. Less manpower, fewer resources needed t. China and Siam (Thailand) i. Compare: 1. Both were very penal; there were NOT many rights; judges were
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NOT independent; there was prevalence of corruption within both systems 2. Bureaucratic system; the punishments were more of “whipping, etc.”, rather than monetary fines 3. In China, private individual could bring a case but there was a criminal aspect in the civil trial u. There are little key differences between East Asia and Europe during the medieval times i. Note that Europe at this time the law was customary and the system was feudalistic ii. In Europe, there were manorial courts that were staffed by lords (or vassals of the lord who were like the lords); villagers would come to the court with their problems and they were resolved in mediation like proceedings v. Stephens article pp 407-410: Order and Discipline in China i. “The difference between these two contrasting states of order and of harmony is reflected in the means adopted to sustain them. In Western society, where concepts of order prevail, disputes are resolved and breaches of order are corrected by measuring them against rigid, universal codes of imperatives external to the parties in adjudication.” … “In the society of traditional China, where concepts of harmony prevailed, disputes were resolved and disturbances of harmony corrected (ideally within the immediate group where they arose) by relating them to the personalities, the exigencies, and the surrounding circumstances of the particular case, with a view to the instruction of the parties in the conduct expected of them, and the punishment of those disturbing harmony.” w. Adjudicative vs. Disciplinary i. Adjudicative (legal) 1. Contemplates: a confrontation between parties on an equal footing, an external fixed code of conduct NOT prescribed by either, and enforced by an authority equally subject to it, independent of each of the parties, and NOT committed to the interests of either one more than the either, regardless of the consequences to the existing political order. The proceedings turn on rights. 2. Rules prescribing conduct are: central, indispensable, and of the essence. 3. Observable in: the West, the USA, Europe, and in sports 4. Appropriate to a society classed as: individualistic and egalitarian, “contract oriented”, “Gesellschaft”, or “organized” 5. Links that bind society together are: reciprocal ties of mutual rights and obligations enforced horizontally between equals. 6. Behavioral guides: please yourself so long as you do NOT break the rigid rules. Lawyers, courts, and judges tell you what you must do according to universal fixed codes, e.g., acts of Parliament 7. Theory of this category: jurisprudence
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8. NOTES: a. Law is more powerful; tells people what to do. The law is the law, it is in itself correct b. Says that people must obey the law; the law (rules) is enforced to keep order ii. Disciplinary (parental) 1. Contemplates: a confrontation between unequal‟s – a status superior and an inferior – where an alleged insubordination is investigated and punished by one of the parties, i.e., the superior (or a delegate) and primarily in the interests of that party, and of maintaining the existing hierarchical order and the superior‟s own authority in it. The proceedings turn on duties. 2. Rules prescribing conduct are: peripheral, dispensable, and, if used at all, for convenience only 3. Observable in: Asia, China, Japan, and in the armed forces 4. Appropriate to a society classed as: group hierarchical, “status oriented”, Gemeinschaft”, or fragmented 5. Links that bind society together are: unilateral ties of duty only, enforced vertically downward upon inferiors 6. Behavioral guides: please your group leaders at whatever cost. Your group leaders will tell you what to do (in traditional China, even what man or woman you must marry), according to what is best for the group in the particular circumstances of each case. 7. Theory of this category: nowhere systematically formulated 8. NOTES: a. Proliferation of law is NOT good b. The leader should NOT use law, but rather cultivate peoples minds so that the people could figure out where they fit in society and thus they will behave accordingly c. Leader more like a parent d. Much more emphasis on hierarchy e. Rules do NOT prescribe all conduct (rules are NOT the most important) and rules do NOT bind the rulers (leaders) i. Have to have individual people as power holders to keep people in line because of their arbitrariness in enforcing rules and handing out punishment x. Note: Beware of making comparisons based on geography because they can be vast (e.g. Asia includes India) y. Shiga’s article pp 411-414 ii. He says the law in Imperial China was much different than the law in Europe iii. Chinese judges had NO independence from the Emperor; rather the judges were part of the bureaucracy iv. “Competitions for jurisdiction among various types of authority, which were notable occurrences in European history, were unknown in China. There was no concept of a constitutional organization, an independent court, or a parliament of elected members, which derived authority from the law or from
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III.
the will of the electorate (i.e., from a source other than the imperial will) – and was thus able to restrict the power of the emperor. The state power was undivided.” THE STRUCTURE OF LEGAL SYSTEMS [pp 535-584; 635-655; 686-703] a. Code based systems vs. Case law based systems i. Code based systems 1. China and Japan ii. Case law based systems 1. Japan before Meiji restoration (late 19 th century) b. Civil Law countries i. France ii. Germany iii. Austria iv. Switzerland (influenced by France and Germany) v. Italy (influenced by France and Germany) c. Common Law countries i. England, Canada, Australia, New Zealand ii. India, Bangladesh, Sri Lanka, Pakistan iii. Malaysia, Singapore, Hong Kong (until 1997) iv. Nigeria, Malawi, Swaziland, South Africa, Tanzania, Zambia, Zimbabwe, Trinidad and Tobago d. Characteristics of Civil (code) law Countries i. A shared feature of Civil Law systems is the use of Codes, the rejection of the doctrine of precedent, the collegiality of judges and the importance of doctrine – or academic comment on the law. Cite to web ii. Civil code in the center of the legal system – both practically and symbolically iii. General part of the code (except in France) which was invented by the Germans iv. Division between civil and commercial (at one time it made sense; NOT so much today) 1. Thus, there is NO real need for the division between civil and commercial today and today it gives rise to ambiguities in the interpretation of the law v. Code does NOT change (belief that one can create a perfect, timeless code that meets societies‟ fundamental needs) 1. However, it implies peoples needs do NOT change; YET being unchanged leads to stability vi. Gap Filling techniques are highly structured and elaborate to keep judges within the code. Keeps the power in the hands of the legislature to make the laws. Do NOT want judges to use case precedent as source of law. Auxiliary statutes softened the harshness of the law especially in the case of family law and contract law vii. Ministerial role of case precedent AND rejection of “customs and usage”. Thus, Code leads to break with the past and with the present. Therefore, Code leads society, NOT follows society
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viii.
ix.
x.
xi.
Larger role for law professors: This is because legislature values expertise and so do courts. If the court has case that is in the professor‟s area of expertise, the court asks the professor to write an amicus brief OR court refers to professor‟s treatise and this will be the source of law used. Role of judges is smaller: 1. Judge‟s decision bind only the parties to the case 2. Although at trial level, a judge in code based system works harder and has more responsibility than judges in common law system 3. The judge in civil law country at trial level has primary responsibility of collecting evidence; the parties to the case supplement the evidence Division between “private law” and “public law” 1. Private law: commercial, K, family and all other laws 2. Public law: administrative and constitutional law Greater specialization in the court system: judges usually only hear cases on a certain type of law; e.g., courts in France are highly specialized
e. NOTES: i. Common law countries were usually at one time part of the British colony and those countries have British common law inserted into their legal systems ii. European Union has a hybrid system (it mixes the 2 classifications) f. Legislative vs. Judicial i. Legislature 1. Legislatures are creatures of will a. There is no need for anymore legitimacy, just vote on it 2. Strong legislature is common among common law countries 3. Legislatures are quickly formed a. Used by governments who want to quickly form a legal system 4. Centralized: legislatures lend themselves to centralized governments 5. Japan, China, and France 6. Used by those who want to transport their legal system ii. How are the gaps in the law filled in? 1. Statutes fill the gaps 2. Code is viewed as be all, end all like a constitution. Thus you try to stay within the code to fill the gaps 3. Analyze the text of the applicable provision of the code a. Look at the codes grammar and internal logic i. Analyze the text b. Analyze the Structure: e.g. is it in the front of the code? i. Look at the general part of the code ii. Auxiliary statues that are cross referenced in the code iii. Directory provisions – inserted in the codes in order
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to tell judges what provisions to use and NOT to use when interpreting text (however this does NOT exist in German code) c. Look for analogies in other code provisions: this is a way to use policy and legislative intent. There are 2 types of reasoning by analogy i. Statutory analogy: the application of provisions referenced to legally similar provisions; this is more strict ii. Analogy of law: distil principles from several, even unrelated, provisions of the code and then apply that; this is rather loose. iii. Statutes (acts of legislature); “Auxiliary statutes” iv. Look to regulations and rules and orders (the lesser types of legal materials) v. Cases: But NO stare decisis; single cases rarely used for gap filling. Look to “customary law”, “legal doctrine”, and “general principles of law”. These terms generally refer to long lines of supreme court cases 1. The above-mentioned techniques limit the role of judges. The judge uses the techniques in the order they are listed above 2. In civil law countries, if you exhaust all techniques, then you can turn to precedent vi. Judiciary 1. Judiciary uses Reason 2. Slowly formed a. Law builds gradually over time 3. Loose feudal arrangements a. Law is formed in dispersed parts of the judicial system 4. Another way to describe common law countries 5. Only part of government that interprets law 6. Has to back up decisions with reason a. Reason way to a decision 7. UK (British commonwealth); U.S.A.; Israel vii. How are the gaps in the law filled in? 1. Judicial reasoning and reference to precedent fill the gaps 2. Merryman argues that most legal systems around the world are a blend of Legislative and Judicial g. Structure of the French Courts [pp 535-551] i. Courts are very localized, rather than centralized. ii. No single Supreme Court, rather each special court has its own Supreme Court iii. The proceeding before French courts is based largely on written documents and is investigatory rather than adversarial. iv. Cour de Cassation does NOT decide cases but quashes the decision and sends the case back, to another court, to be re-heard. If this second court still arrives at the same view there is a further appeal to the full court of
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the Cour de Cassation which is called the Assemblée plénière. This hears the cases and can make a final decision. The role of this court is to ensure a uniform interpretation of the law; it has jurisdiction over the ordinary courts of the entire country. h. Characteristics of French Court System [pp 535-551] i. French court system is very specialized ii. The power of judges is diluted because there is NOT a single top position with a lot of power, and each top court has many judges so power is further diluted. iii. Judge‟s status is low iv. Constitutional Council hears constitutional questions and only issues advisory opinions. “This body is authorized to review legislation, BUT only at the request of the executive or a special proportion of the legislature, only BEFORE promulgation, AND only for the limited purpose of ascertaining whether the laws are in conformity with the constitutional division of powers between the executive and legislative branches.” Comparative Legal Traditions Nutshell, pg 65 i. Jurisdiction of the French Conseil D'Etat: [pp 535-553] 1. Conseil D'Etat (Council of State) – the central organ of governmental administration. Only governmental organ that has jurisdiction to determine whether acts of the executive branch are illegal or unconstitutional. [543] ii. Cassation, special review on issues of law, on motion to quash lower administrative courts' ruling; iii. Original trial jurisdiction on the constitutionality or underlying legality of administrative action; iv. Reference Procedure: lower level administrative court may request a non-binding, but usually followed decision, on novel issues of law. j. French Civil Code i. Book 1: of persons ii. Book 2: of property and of different kinds of ownership iii. Book 3: of different ways of acquiring property iv. French Civil law of 15th century was focused on (1) status of individuals and (2) property: who owns it and how do people get it 1. In feudal times in France where you were born (e.g. serf, vassal, etc.) dictated your legal status and property rights a. Now the civil code had to spell these things out 2. The French revolution tried to remove encumbrances (e.g. feudal obligations based on the land) on land so to allow free commerce a. Once encumbrances were lifted, the French needed rules and thus Book 2 deals with these rules v. The Books are broken into titles that are broken down by chapter then by section vi. The Books have provisions for certificates of death, birth, and marriage because it allows for the tracking of people 1. Certificates allow the government to collect information on people
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and track them because after the French Revolution people were free to move and associate vii. Provisions of Book 1 try to shape peoples civil duties; create a new culture of being a citizen and look to the government as leader (NOT the church, and NOT the family) viii. Book 1 Title VII: filiation – tells who has the right to take over as head of household ix. Book 1 Title IX deals with parental Authority x. Book 1 Chapter 4 deals with debt xi. Book 2 and Book 3 seem to explain property (describe it) and tell rules for it xii. Book 3 covers agency and lists the torts xiii. Compare French Code to German Code 1. German Code a. Much more organized and rational i. It is very well organized; it is comprehensive; it gives definitions b. The code moves from more general to more specific c. Connections among the books are clear in German code by cross-references d. Law recognizes status of people and things e. Next, the code expounds on legal transactions f. Section 1 is of persons; Book 3 deals with property; Book 5 is law of “succession” – inheritance law g. German Civil Code more influenced by French Civil Code THAN French Civil Code influenced by German Civil Code h. Note that civil law codes are much like constitutions 2. Differences between French and German Civil Codes a. French Civil Code more directly based on Roman “Corpus Juris Civilius” which was written by Justinian; The German code is more innovative b. French code adopts some Germanic traditions and customs because Northern France was influenced by Germany c. German broke more with the past than did the French d. French Code easy to understand by the average person; French code uses simple, broad, and ambiguous language; sacrifices clarity; has gaps to be filled in later by other people (legislature, judges, etc.) e. German code uses technical words, is more detailed and precise; but a person needs to be a professional (lawyer) to understand it k. German Court system [pp 564-565] i. Structure of the German Court system is defined by 4 characteristics: 1. Political division into federal and state courts a. Courts are more systematically organized (organization is a
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variable) b. German courts more unified than the French court system 2. Appeal through unitary hierarchies a. Each German Court has own tract of appeal b. Compare France and Germany based on judicial review (this is a variable) 3. Geographical decentralization so that even small towns have civil and criminal courts 4. Specialization by subject matter a. French courts are between German courts and USA courts in terms of specialization (specialization is a variable); German courts are highly specialized; USA NOT very specialized, and French courts somewhat specialized ii. Note: “The first three characteristic also describe the system of courts in the United States, although the federal-state division is almost totally different.” [564] iii. The organization of courts mirrors the court structure in both France and Germany iv. German constitutional courts can take “live” cases and have more power to review than French courts v. German Supreme Court can rewrite lower court opinion – this is revision 1. Whereas French courts have cassation – where the court does NOT rewrite the opinion, rather it just tells lower court where they went wrong and send it back down to the lower court vi. German courts have lay judges on the bench; French courts do NOT 1. Side note: China has lay judges but they have NO real power vii. Lay judges created because (1) they give lay point of view, (2) if chosen by official government body, then they are there to check judges power 1. It is unclear if lay judges reduce the judges power of review 2. Professor speculates that lay judges are on the court as a symbol l. Clark’s article pp 566 i. “Although it is possible for an appeal to go directly to the [German] Federal Supreme Court if both parties agree and the facts are not in dispute, most appeals are taken de novo to a state court of appeals.” m. Reception of European law in East Asia i. Misleading because of word “reception”: it implies one way movement when there was a two way influence 1. France and Germany were looked at as seminal legal systems and rest of the world was just waiting to have their law imprinted - this is obviously misleading ii. There was influence of French and German law on Asian law BUT Asia mended it with East Asian laws 1. So there was layering process a. E.g. Indonesia: Dutch commercial law was applied BUT Islamic law also was in force and other indigenous family laws
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What was transplanted were the “forms” of the law (but sometimes also substantive law) and legal philosophies 1. France and Germany are based on (1) Roman law, (2) Canon law, and (3) commercial law (law merchant) n. These elements of French and German law were transplanted to East Asia 1. The use of codes 2. Need of law to match society 3. Judges that were part of bureaucracy 4. Law effects colonization (law aids in colonization) 5. Idea that law modernizes (e.g. France said break with past and start over) 6. Emphasis on an inquisitorial court procedure ii. Elements 1, 3, and 6 made it easy to mend to local law because fit with local traditions iii. Elements 2, 4, and 5 sounds great to people so they embraced it iv. Interesting that France and German law BOTH influenced East Asian law; it was not just one country's laws o. Japan Legal Structure i. It is more hierarchical ii. Less specialized than the German and French trial courts 1. Note that administrative cases are lumped together with criminal and civil case iii. More unified; thus more like the USA court structure. 1. E.g. one Supreme Court 2. Note that we gave Japan their constitution around 1945 and wanted to make their government weaker 3. Prof. says: note it is Stevens theory that the Japanese are more docile, harmonious, peaceful, respectful, and “get along”; thus their culture as expressed by Stevens is a theory iv. Is Japan less litigious than the USA? Most say YES, BUT be skeptical of it. 1. Institutional offerings (access to court and remedies) influence the amount of litigation; in short there are institutional reasons why there is a low number of lawsuits filed in Japan a. Japan does NOT allow contingency fees 2. Haley’s article pp 695-696 a. Why do Japanese use their courts far less than do Americans? “A relative lack of litigation can be explained by several factors. One is the effectiveness of third party intervention. In short, the Japanese may be more successful in avoiding litigation because of social organization and values more conducive to informal dispute resolution through mediation. Resort to court is, however, reduced by another set of factors that do inhibit or enhance the utility of the judicial model as a vehicle for social control and development. First, for courts to have an impact through iii.
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decisions in individual cases beyond those immediately affected in those cases, information about the courts and these decisions must be disseminated in order that parties to similar disputes are sufficiently aware of the legal norm for it to influence informal resolution of their disputes. There must also be meaningful access to courts. A third factor is the capacity of the courts to provide adequate relief.” v. Note pg 643: “The Japanese level of criminal litigation is also very low by European standards.” p. Japan (Tanka, Constitutional System of Japan and the Judicial System, p 635) i. Executive - The emperor 1. Primary role is to be the symbol of the State and the Unity of the People. 2. Power granted through the Imperial Household Law, enacted by the Diet and subject to amendment. 3. Sovereign power remains with the people ii. The Legislature - The Diet 1. House of Representatives - More powerful than House of Councilors; if disagreement on election of Prime Minister, House of Representatives opinion wins 2. House of Councilors - everyone gets to vote for one House of Representatives and one House of Councilors for their prefecture. Creates instability in who will be chosen. (No primary election.) iii. The Judicial System - much like the US system; it is Centralized [pg 639] 1. No stare decisis but prefer judicial consistency 2. Judges cautious about overruling legislation 3. Diet is the sole lawmaking power of the system; makes it hard to have stare decisis and puts judiciary on a lower footing 4. Judiciary simply refrains from pushing the envelope on testing ability to declare things unconstitutional. 5. NOTE: Korea and Taiwan - pp 645 and 649. q. China i. Chinese State Council is the highest branch in the government 1. It must approve a bill for it to become law ii. Standing committee meets every 2 months and it interprets the constitution (the courts do NOT interpret the constitution) iii. There are non-transparency issues – some laws are NOT published r. CONSTITUTIONS i. Another thing that was transplanted around late 19 th century was the idea of a constitution 1. This was an USA legal innovation 2. A constitution is a anti-monarchial and it is anti-centralization 3. The constitution got to East Asia through British influence by colonization ii. Britain saw our constitution and did NOT want to have codes so they
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IV.
made their own constitution iii. British government gave their colonized countries a constitution because it kept power decentralized (thus colonized country could NOT have great power) at the governmental level iv. Eventually France and Germany made their own Constitutions JUDICIAL REVIEW a. Cassation: quashes an incorrect interpretation or application of the law. It does NOT solve the case, that is up to the lower courts, which is NOT bound by the Cassation court‟s suggested, non-binding resolution of the case. That is why you have the two-judgment rule of cassation in France. Pp 706 & 709 b. Revision: German origin; was the right of the Emperor to Revise, i.e., to re-decide correctly a judicial decision. The appellate court issues binding decision as to the entire case. Remand is not even necessary. Pp 706 & 708-709 i. However, note that revision is, like cassation, limited to errors of law at certain high courts. Pg 710 c. Japan d. Under Article 81 of the Japanese constitution, the Japanese Supreme Court can review statute and deem it unconstitutional i. BUT can it nullify the statute? 1. The Diet (legislature) is the highest power, NOT the Courts. So the Diet could ignore the Japanese Supreme Court if the Supreme Court finds the law unconstitutional 2. The judicial process is NOT legislative 3. Judicial process could just refer to judges deciding controversies OR they could decide to invalidate law 4. In Article 76 of the Japanese Constitution, the word “whole” is very expansive. This is as close as you can get to use the word “whole” to argue the Japanese Supreme Court could invalidate a statute ii. Thus, in theory, the Japanese Supreme Court‟s power to nullify a statute is ambiguous at best b. Judicial review is more limited in Japan than in Germany; France is the most limited c. Beer’s article pp 819-820 i. “The [Japanese] Supreme Court is not a „constitutional court‟, in the sense that it cannot decide issues except in the context of controversies between parties with standing to take legal action. The technical effect of a judgment of unconstitutionality is debated. „A conclusion in a decision of a superior court shall bind courts below in respect of the case concerned‟ [Court Organization Law art. 4], but not in general. Consistency among judicial decisions is generally honored, but not a doctrine of stare decisis. If the Supreme Court holds a legal provision unconstitutional, the same or other courts may nevertheless rule differently on the same issue in other cases.” d. China i. In China, NO recognition of judicial review in the Chinese Constitution;
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the legislature is the highest state organ and thus the courts are inferior ii. In China the legislature has the power to interpret the laws 1. In France, Courts have NO power to interpret laws iii. In reality, judges in China and France do NOT try to interpret the law e. Germany: Judicial Review of Laws [pp 553-569] i. If constitutional, may proceed and enforce [pg 560]; ii. If unconstitutional, must stay proceedings and refer to the Constitutional Court [pg 560]. This applies to post-constitution laws; any court may invalidate pre-constitution laws as unconstitutional, same rule applies to executive regulations pursuant to legislative grant [footnote 3 pg 560]. iii. “Appeal is commonly used in Germany. A dissatisfied party has the right of appeal de novo on both the facts and the law in most cases, followed by a discretionary appeal (Revision) limited to errors of law before a federal high court.” [Pg 711] f. French Judicial Review i. “Statutes in France, once promulgated, cannot be reviewed for constitutionality. They must be applied by the ordinary courts even if incompatible with a principle in the Constitution. Ordonnances and regulations, however, can always be tested for conformity to the Constitution and to what is known as „general principles of law‟, which the Council of State has developed over the past 150 years.” [Notes section of casebook, pg 735] ii. French Const. Article 61 [pp 760] 1. Organic laws, before their promulgation, and regulations of the parliament, before they go into effect, must be submitted to the Constitutional Counsel, which rules on their conformity to the Constitution. iii. French Const. Article 62 [pp 760] [1] A provision which has been declared unconstitutional may not be promulgated or put into effect. [2] The decisions of the Constitutional Council shall not be subject to review. They are binding on governmental, administrative and judicial authorities. g. Judicial review in France is MORE LIMITED than in Germany i. Evident in difference between revision and cassation ii. Subject matter jurisdiction limited power of judges 1. Thus, the more subject matter jurisdictions in a court system, the more specialized the judges are and the less power each judge has because each judge only decides a particular case iii. There are fights over subject matter jurisdiction between courts in France – courts usually want to have jurisdiction 1. Professor says that: There are cases where it is NOT clear as to whether the case is administrative or criminal; thus the more specialized the court system, the more jurisdictional fights that arise iv. In France, the court that decides the jurisdictional dispute usually gives the
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V.
case‟s jurisdiction to the administrative courts because the administrative courts are close to the legislature v. Key limit on judges in France (somewhat so in Germany) is that judges CANNOT make the law; their opinion is NOT binding vi. French judges are more limited than USA judges AND German judges because of conflicts tribunals that rule on conflicts decisions. vii. Judges are bound by 1790 Statute that says they must write in the grammatical structure shown in the opinion on pp 733-734 1. This does NOT exist in Germany b. NOTES: i. The opinion on pp 733 is written without periods because it zeros the judge in on the statutory provision that apply; there is no reasoning in the opinion; the judge is NOT filling the gaps of the law; the judge limits how the lawyer can apply the opinion to future cases – it gives lawyers nothing to work with 1. Note that it makes French legal research more difficult and NONE of the lawyers work is reflected in the opinion ii. Professor Lee defines the US Judicial review system with these features: 1. Finality - highest court has final power to interpret a. Similar to Germany and Japan i. But more broad. 1. "Decentralized judicial review" - all USA courts may interpret the constitution and any applicable law b. Unlike France, in that US Courts: i. “Direct judicial review” - judges rule on legality of acts, also may invalidate those acts for all future cases (stare decisis) ii. State courts may apply laws of their constitution and US constitution; may declare federal statutes or actions invalid under US Constitution. iii. Courts are the only institution entrusted with task of invalidation; all interpretations of law are subject to judicial review. iv. Jurisdiction - courts may determine the parameters of their authority (Marbury versus Madison) v. Courts are free from interference in the process of arriving to their decisions, subject to limitations on ability to interpret administrative and legislative acts ("judicial independence" from what? Influence of politics?) LEGAL EDUCATION AND LEGAL PROFESSIONS a. LEGAL EDUCATION i. The origins of the legal system probably affect law school in civil law counties. Additionally, it is likely that since there are many legal systems (e.g. France, Germany) in Europe, the legal education needs to be
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general ii. In addition, undergraduates in civil law countries undertake legal education iii. In civil law countries, law graduates usually have to do a lengthy internship after law school. iv. Law schools in civil law countries have a “cookie cutter” curriculum in that it never changes and moves many people along through the system. b. Damaska’s article pp 841-847 i. Grammar of Law: like biology in that it is highly structured; you talk about the law in specific terms and on different levels, e.g. levels from specific to the general, and you speak across the levels 1. It is conceptualist yet it is rigid compared to U.S. legal ideas ii. Prof. Lee believes the point of the article is: what Europe does is rigorously shape the thinking of lawyers and judges because it is what is needed for professionalism iii. Lawyers in civil law countries are more specialized than lawyers in common law countries; this specialization is started in law school when a student chooses a specific track (field of study); note the number of electives students can take, it is the same in China c. East Asian Legal Education i. Basic curriculum emphasizes codes, constitutional and administrative laws, and international and comparative laws. ii. Mostly theory, very little problem solving iii. Very few specializations (seen in 2 nd and 3rd year in US) are taught in East Asia 1. Taiwan has more of a US influence in this area iv. Practical training after university training; Must pass practical test to become certified lawyer d. GLOBALIZATION OF LAW i. Most of the issues of globalization deal with legal training. 1. Continental versus USA Legal Education a. Merryman, pg 847: Fundamental differences of higher education i. Democracy vs. Meritocracy 1. Democracy - the urge to maker higher education available to everyone without distinction. ii. Civil law world leans towards Meritocracy 1. Meritocracy - making a university a place where academic merit is recognized and rewarded. ii. In Europe, lawyers control their life and workload; usually lawyers have a solo practice and they make less money than U.S. lawyers. iii. France: for example, average French lawyer makes about $2,000 a month, gets 5 weeks of vacation, and work 8 hour days but they take long lunches.
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VI.
Firms rising in France are Anglo-Saxon firms – huge firms with many departments that specialize in specific legal matters. v. These firms offer one stop shopping, charge a lot of money for their services, and promise quick turn around on the client‟s legal matter. Thus, lawyers in these firms work more hours and make more money. The lawyers have to be bilingual. vi. The way the Anglo-Saxon firm operates is anti-French culture. vii. Because Anglo-Saxon firms are growing in Europe, it is taking over the way law is practiced in Europe. viii. The European lawyers that work in Anglo-Saxon firms do NOT think about the law as they were trained to in law school. ix. France has old laws that state the guidelines for how employees are to be treated, but these laws are being weakened to fit the work practices of Anglo-Saxon firms 1. For example, how do Anglo-Saxon firms get around the 35-hour workweek? One way is to give more vacation time – e.g. give a lawyer 8 weeks of vacation but tell the lawyer that they cannot use the full 8 weeks; thus, the firm meets the law and gets the hours out of the lawyer. x. The legal education in Europe is NOT preparing students to work in Anglo-Saxon law firms in France e. Characteristics of Anglo-Saxon Law firms: i. Emphasize profits over justice ii. “Hired guns” assisting robber baron iii. Surrendered noteworthy prerogatives in order to be part of the market iv. Disassociated themselves from the nation-state; firm tries to get around laws by using contracts; try to stay out of court is another way to get around laws and disassociate from the nation-state v. Subvert previous social legal network vi. Services offered are “banal” because they are NOT eloquently written CIVIL PROCEDURE i. To be as far from lay decision-making is important for the civil process in Civil Law countries. ii. What do courts do and what do they have to accomplish? 1. Courts need to solve 4 problems: a. (1) Figure out how to get things started in each individual lawsuit/dispute i. Who gets to bring their disputes to the court? (Personal Jurisdiction type issues) ii. What kinds of disputes will be heard? iii. What manner or type of presentation does the court want or will it tolerate? Writing, Oral, or mixture. iv. How much of each case will each court let in? Theoretically, the court could let them say whatever they want. This is a difficult extreme. They can't do this. They have limited resources. iv.
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v. Who gets to participate? Joinder questions. Supplemental Jurisdiction in federal courts has to do with which claims can be litigated. b. (2) How is evidence gathered? i. Can you prove it or disprove it? Discovery. ii. In the USA parties do discovery. In USA, judges say lawyers and parties need to work it out with each other before they seek the help of the court. After that you can go to the court, but rules don't force judge to help, they just allow for the judge to help. Many judges have a passive view about discovery because they don't want to deal with it. c. (3) Presenting the evidence to the decision-maker: i. In the USA, we separate between the gathering and the presentation. The decision-maker says he will wait until it is all assembled and then you can show it to him. Once you show it to him, you have to screen it heavily for him because he can't be trusted with any evidence. He can't be trusted between invaluable evidence and valuable evidence. This screening process is governed by federal and state rules of evidence. The decision maker is NOT always a jury, but the federal rules of evidence regulate the presentation of evidence as if it is always a jury. The rationale is to have a lay decision-maker (jury) who can't be left to weigh hearsay evidence. It isn't worth as much as direct testimony. Don't want to explain it to the decision maker so it is just screened out. d. (4) Deciding the Result: i. Seen the evidence, what is the result? Who gets to decide the result - lay party, professional, mixture? ii. On what basis do you decide the result? Do you use fairness, conscience of judge, natural law? A sense that there is one true, unchanging standard handed down by God or that it is abstract but it is there nonetheless. b. An Overview of Civil Procedure in Europe [Merryman’s article pp 1013-1022] i. “All systems of procedure in the civil law tradition have a common origin in Roman, Canon, and medieval Italic law.”… “A typical civil proceeding in a civil law jurisdiction is divided into three separate stages. There is a brief preliminary stage, in which the pleadings are submitted and a hearing judge (usually called the instructing judge) appointed; an evidence taking stage, in which the hearing judge takes the evidence and prepares a summary written record; and a decision making stage, in which the judges who will decide the case consider the record
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transmitted to them by the hearing judge, receive counsel‟s briefs, hear their arguments, and render decisions.” … There is no jury in the civil law system. Also, there is lack of concentration in civil law systems; yet there has been a trend toward concentration (which exists in common law countries), and thus this is a sign of convergence between common law and civil law systems. “Lack of concentration has some interesting secondary consequences. For example, pleading is very general and the issues are defined as the proceeding goes on.” Also, lack of concentration means that the civil law attorney spends less time preparing for court appearances, the element of surprise is reduced since appearance in court is relatively brief and involves a small part of the total case, and discovery and pretrial procedures are of less importance. “A second characteristic of the traditional civil law proceeding is that evidence is received and the summary record prepared by someone other than the judge who will decide the case.” Lastly, “cross-examination seems foreign to the civil law proceeding.” c. Civil Procedure in Continental Europe: i. Evidence: 1. Evidence rules are different in Europe than here. Juries are increasing there, but they are still rare or never used, and if used then only in certain cases. This is evidence of convergence of European and American civil procedure. 2. Judges gather evidence, but parties are able to bring some evidence but with some restrictions. You can't go on wild fishing expeditions. The court decides the shape of the issues. This means the cost of the parties is much less. This reduces the costs of civil litigants. 3. Timing of the gathering of evidence: In USA, we have pretrial gathering of evidence and then we have the trial, which is the presentation of the evidence. They are separated clearly. a. In Civil Law systems, civil procedure blends the two in an episodic fashion. The parties or court discover evidence, it is put in written form, it is read and analyzed and may make a decision on that portion which may have an affect on the case. The court isn't under the same time constraints as a jury so it can drag on longer. b. Not worried about judges being prejudiced by evidence. There are few rules about screening evidence. We trust the judges to appropriately weigh the evidence. c. In order to ensure the judges do a good job gathering the evidence and making their decisions, we make sure they get good training, hire them into a bureaucratic system where they aren't alone. In USA our judges are kings of their courtrooms. d. There are also appellate safeguards to ensure judges do a good job. There is an absolute right to at least one appeal
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de novo - the facts can be examined as well as the law. 4. USA civil procedure is starting to target judges more than the parties now. This is a kind of active approach to the pre-trial conference is almost unheard of in USA civil procedure. In civil law countries, the judge can tell the parties that they should consider looking into some issues more. 5. Another example of USA movement from its system - plan discovery plan together is now a rule. They have to decide what discovery process will look like. What information will be "volunteered" before even asking for discovery? The other side doesn't have to take the initiative. That is what our whole adversarial system means - the entire burden is on the parties. This is rule 26A. ii. Attorney's Fees: 1. Europe and Asia - loser pays fees. Solves unfairness of where people who are right can't sue. 2. In USA, each side pays their own fees normally. d. Which system is better: the European Approach (Civil law) or US (common law)? i. Advantages of Civil Law Approach to Civil Procedure (SEE Langbein article) 1. Not tainting evidence with partisan spin a. If we leave it to the parties to produce the evidence, like in the USA, the parties will to talk to witnesses and tell them how to testify. Also, the witnesses is tainted because the witness wants to please the side they are on b. In civil law countries the witness is chosen by the court. c. Rebuttal: i. At least in USA, you know which side each witness is on. There is no cross-examination in civil law civil procedure. In USA, we bring out the witness‟ biases and subject those biases to rigorous examination. 2. The record in Civil Law countries is more compact and easier to use; this makes it more efficient 3. The Evidence used is more complete because it is NOT screened for a jury a. The evidence it is not excluded because of hearsay, character stuff, etc. 4. NO forum for lawyers to appeal to decision maker‟s emotions; such appeals distort the truth a. So there are no emotional closing statements and rhetorical flourishes aren't part of the process. 5. Greater access to justice because parties do NOT need to spend a lot of money on a lawyer since he doesn't do that much anyway. 6. Easier to settle cases
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Disadvantages of the Civil Law System (Arguments against Langbein’s article) 1. In the U.S. cross-examination is used to make witnesses testimony NOT as tainted 2. Character of evidence is important in the U.S. 3. Sometimes parties do come up with brilliant solutions in a case, but they cannot use them in civil law countries; should there not be a way to influence the civil law judge to accept the solution? There is no assurance of this in civil law civil procedure. a. In U.S., if the parties come up with a great solution the judge will listen b. If you do not have strict evidence rules (as in Europe), then corrupt evidence may come in iii. NOTES: 1. Langbein asserts that USA and Germany systems are very comparable. The main difference between Continental Europe and American litigators is that Continental Europe litigators are “lawadversaries”, whereas American litigators are “law-and-factadversaries”. 2. In Europe, civil procedure rules are consequence of NOT having a jury. Thus, there is NO emphasis on winnowing legal issues down early in the case, gathering evidence, and keeping the judge passive. a. Recall that in U.S. the judge must be neutral and he is only given evidence on the narrow issues 3. In early European times, juries were people of the town who knew the parties, knew what led up to the dispute, and may have even been witnesses. The jury was NOT neutral. The jury was used for gathering evidence and that evidence was used to decide which party wins. Therefore, the jury was first used as testifiers (each member gave information about the dispute) then gradually changed to decision makers. a. Recall that in early Europe there was trial by ordeal. In 1200‟s trial by ordeal was abolished; it was replaced by oath taking e. Germany Civil Procedure pp 1029- 1041 i. Points of Contrast With American Procedure [pp 1033] 1. Episodic Proof-Taking Disapproved 2. The Dominant Role of the Judge 3. Evidence and its Production 4. Quick Access to the Judge ii. The Dominant Role of the Judge 1. Determination of the trial agenda, including an order of proof directing appearance of the parties and witnesses, and the presentation of documents; 2. Examination of parties and witnesses, with lawyers performing
ii.
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iii.
iv.
v.
vi.
vii.
viii.
only an interstitial role; 3. Production of the record of witnesses' testimony, excluding questions and frequently rephrasing or reorganizing answers; and 4. Direct communication with the parties, not only for factual assertions, but also to explore settlement possibilities. 5. Evidence and its production: The typical factual search is Unmotivated and Un-imaginative The German “Advantage”? pp 1035 1. Judges, NOT the parties‟ attorneys, have chief responsibility to a. Determine the order of proof, b. Examine the witnesses, c. Create a compact record of the witnesses‟ testimony by dictating summaries of their testimony, and d. Secure the testimony of experts, if needed. Witnesses 1. It enhances the quality of testimony by reducing the opportunity for lawyers, intentionally or unintentionally to influence that testimony. 2. The Judge can eliminate unnecessary testimony. 3. More Efficient because of no discovery. 4. Experts: Not “Vending Machines”. Advantages: 1. Reduces litigation costs 2. Judge Eliminates unnecessary testimony 3. Avoids typical three rounds of testimony (interviews, depositions, trial). 4. Enhances the quality of testimony by reducing the opportunity for lawyers, intentionally or unintentionally, to influence testimony. Surprise pp 1036-37 1. German civil procedure protects the litigants from surprise by requiring each party to identify the evidence upon which it relies, including the witnesses and what they are expected to say, in advance of any evidentiary hearing. But USA institution of discovery goes far beyond the prevention of surprise by allowing a party to search for evidence in opponents' and nonparties' hands to support its own claims and defenses or to challenge opponents' claims and defenses. Discovery pp 1037 1. Germany simply does NOT provide any general rights to discovery evidence. 2. Contrast FRCP Rule 26(b)(1) “reasonably calculated to lead to the discovery of admissible evidence.” a. Prof from UofF: I would add a third: the liberal standard of relevance at the admissibility stage under FRE 401. German Evidence 1. In Germany, by contrast to USA, parties cannot be forced to
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testify, and the court will refuse to take the testimony of any witnesses who are nominated solely to find out what they might know about the facts in dispute. Moreover, the taking of evidence in German trials is governed by a strict standard of relevancy f. French Civil Procedure pp 1041-1044 1. The distrust of oral evidence. 2. Unwillingness of the judge to compel production of evidence in the hands of a party. 3. Accusatorial System: Parties have the obligation to prove their case 4. Parties may call for investigative measures but they have no power to require the judge to carry them out ii. The distrust of oral evidence 1. “French civil procedure is marked by a strong preference for written proof and by the tendency of French judges to avoid factual determinations that must be based on evidence which is complex or otherwise difficult to evaluate.” [pg. 1041] 2. An expert may be appointed to conduct a trial-like inquiry into complex facts. [pg. 1041] 3. No “Discovery” or even subpoena [pg. 1041] 4. Unwillingness of the judge to compel production of evidence in the hands of a party. 5. Despite formal authority to do so, the French judge might “refuse to hear, or at least [refuse] to require the production of, evidence that might be thought vital to the court‟s perception of historical truth…” iii. “Accusatorial” System 1. Clearly what we would label “adversarial” 2. Parties have the obligation to prove their case 3. Judges often refuse party requests for discovery and compelled production of evidence unless satisfied of strict “relevance” and NOT carrying the party‟s burden of production and proof [1042] iv. Supervising/Investigating 1. French Magistrate [1042] a. Can, but rarely investigates b. Supervises exchange of documents among parties c. Submission of pleadings d. Fixing Deadlines e. Preparation of case by parties for public hearing f. Reports to the deciding panel v. Parties’ “Version” vs. “Proof” [pg 1042] 1. “The investigating magistrate may call the parties themselves, who may be invited in the presence of their lawyers to give their versions of the facts.” 2. “They do not do so under oath.” 3. Third parties give “facts” under oath either in writing or in a
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vi.
vii.
viii.
ix.
hearing Exchange of Documents [pg 1043] 1. Parties are forbidden from using at hearing any documents not included in their pleading files and thus available to the other party. 2. Failure to produce exculpatory documents is not a major fear (no real consequences). 3. Opponent can require other party to produce documents, but reluctant if he is unsure of contents Fear of Failure to Produce 1. “Unfavorable evidence may remain undisclosed and there will be little reason to fear that the opposing party will learn of its content or even its existence.” [pg 1043] 2. May be changing (but slowly). 3. Non-contentious procedure The Goal of French Civil Procedure 1. Encouraging resolution of the case, disturbing third parties as little as possible, pleading more important to “approximate the truth”. [pg 1044] Advantages and Disadvantages of French Civil Procedure 1. “The great merit [advantage] of the French approach is that it does NOT impose the costs associated with common law procedure and appears to satisfy those who operate it and those who whose claims are decided by it. The disadvantage, apart from whatever reservations one may have about the system‟s ability to found its decisions on a satisfactory version of the „truth‟, is in the profound inconsistency between the provisions of law and the duties assigned to the courts by law, on the one hand, and the way the system really works, on the other.” Beardsley article pg 1044
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