Civil Law slide 8

1. Introduction to Civil Law
School of Law An Scoil Dlí

2. Introduction to Civil Law
Dr Suzanne Kingston
School of Law An Scoil Dlí

3. Influence of common law and civil law
systems on each other

4. Influence of common law and civil law
systems on each other
• Tendency think own system is better
– Caricatures of other systems

5. Influence of common law and civil law
systems on each other
• Tendency think own system is better
– Caricatures of other systems
• Is the reality more complex? “Globalisation” of
law, subject to socio-cultural differences?

6. Influence of common law and civil law
systems on each other

7. Influence of common law and civil law
systems on each other
• Reasons for the influence?
– EU law (“harmonisation” of law – formal and
informal)
– International law
– Migration of scholars and judges
– Comparative law
– Demand:
• international trade
– Compare: merchant law
• Cross-border movement of persons (economic and
non-economic migrants) – eg family law disputes
• Jurisdictional “forum shopping” eg tax law

8. Influence of common law and civil law
systems on each other

9. Influence of common law and civil law
systems on each other
• Older tradition of influence
– Roman law studies; jus commune
– Colonisation

10. Influence of common law and civil law
systems on each other

11. Influence of common law and civil law
systems on each other
• Examples
– US Declaration of Independence, French
Declaration of Rights of Man and the Citizen
• …to huge variety of national constitutions
– Public law, private law distinction
– Abolition of rule that can cite opinion of dead, but
not living, jurist
– Movement from oral procedure to more written
procedure in common law
– Increase in jury trials civil law

12. Influence of common law and civil law
systems on each other

13. Influence of common law and civil law
systems on each other
• Examples
– Increase in criminal defence counsel civil law
– Increasingly active judicial role common law
– Increase in citation of academics common law
– Publication of judgments civil law and increasing
citation of previous judgments – de facto
precedent?
– Increase in use of “codes” in common law – though
often these are codifications of judicial decisions

14. Influence of common and civil law
systems on EU law

15. Influence of common and civil law
systems on EU law
• What is the EU?

16. Influence of common and civil law
systems on EU law
• What is the EU?
• Many original features of EU legal system similar
to civil law systems
– European Court of Justice: Unanimous judgments –
no dissenting opinions
– Emphasis on written procedure
– Relationship between national courts and ECJ (Art.
267 TFEU “preliminary reference” system):
comparable to French cassation?
– Role of the “Advocate General” in ECJ comparable
to the French procureur général
– No formal system of precedent
– Judges ask questions at hearing (esp. recent years)

17. Influence of common and civil law
systems on EU law

18. Influence of common and civil law
systems on EU law
• Common law features also present
– Importance of judge-made law in EU law
• Lots of citation of previous case law now
– Sometimes expansive method of “statutory”
interpretation (esp. interpretation of founding
principles of the EU Treaties)
– Judges not good at finding “facts” – rely heavily on
parties and/or national courts

19. In turn, EU law influences common/civil
law systems

20. In turn, EU law influences common/civil
law systems
• Eg proportionality in England, Ireland

21. In turn, EU law influences common/civil
law systems
• Eg proportionality in England, Ireland
• Trade law initially most influenced

22. In turn, EU law influences common/civil
law systems
• Eg proportionality in England, Ireland
• Trade law initially most influenced
• “Formal” harmonisation: Member States amend
EU Treaties to allow EU legislation in broader
areas (often with cross-border aspects)
– Eg environmental law
– Eg sex discrimination law
– Eg some aspects of asylum, immigration law

23. In turn, EU law influences common/civil
law systems

24. In turn, EU law influences common/civil
law systems
• “Informal” harmonisation – Joint Network on European
private law
– Eg projects on European Contract Law and European Civil
Code

25. In turn, EU law influences common/civil
law systems
• “Informal” harmonisation – Joint Network on European
private law
– Eg projects on European Contract Law and European Civil
Code
• Some areas remain taboo
– Tax
– Social security
– Education
– Criminal law
• European Arrest Warrant (2003)
• Role of “Eurojust” (2002) network of prosecutors and judges
• Treaty of Lisbon makes possible “European Public
Prosecutor” for cross-border financial crimes
– Rules of general legal procedure

26. Influence of common and civil law
systems on international law

27. Influence of common and civil law
systems on international law
• European Convention of Human Rights (ECHR)
law
– ECHR (1950) preamble: based on “common
heritage of political traditions, ideals, freedoms and
the rule of law”
• Follows from 1948 Universal Declaration of Human
Rights
– Judges include former academics, former judges,
former diplomats
– Not necessarily unanimous judgments

28. Influence of common and civil law
systems on international law

29. Influence of common and civil law
systems on international law
• European Convention of Human Rights (ECHR)
law
– Not always oral hearings – emphasis on written
procedure
• Court may decide to have oral hearings – questions
put to parties
– Rarely investigates facts, though has power to do
so

30. Influence of common and civil law
systems on international law

31. Influence of common and civil law
systems on international law
• International criminal law
– International Criminal Tribunal for the Former Yugoslavia
(1993)
• Not all judges are permanent – some are ad litem
• Much fact-finding, but done by Prosecutor (adversarial)
• Deference to common law system, but changes in Rules of
Procedure to more inquisitorial approach
• Eg Slobodan Milosevic self representation
• Eg Cross-examination possible
• But ICTY as a “third way”?
– few restrictions on admissibility of evidence
– ICTY can order production of new evidence
– No plea-bargaining or immunity
– International Criminal Tribunal for Rwanda (1994) similar
to ICTY
– International Criminal Court (2002)