critical analysis on legal research in civil law countries and common law countries

7/23/2019 Critical Analysis on Legal Research in Civil Law Countries and Common Law Countries

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Tata Institute of Social Science, Deonar, Mumbai

Assistant Professor: Asha Sundaram

Critical analysis on legal research in civil law countries and common law

countries

Submitted by:

!ame: Sheethal

School of "aw, #ights and Constitutional $overnance

#oll !o: %&'(""M&'&

Date: ')''%&'(


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Critical analysis on legal research in civil law countries and

common law countries.

Most countries today follow one of two ma*or legal traditions ie common

law or civil law The common law tradition emerged in +ngland during the

Middle Ages and was alied within -ritish colonies across continents,

whereas The civil law tradition develoed in continental +uroe at the

same time and was alied in the colonies of +uroean imerial owers

such as Sain and Portugal

Glimpse of common law and civil law system

Common law is a eculiarly +nglish develoment -efore the !orman

con.uest, di/erent rules and customs alied in di/erent regions of the

country -ut after '&00 monarchs began to unite both the country and its

laws using the 1ing2s court 3ustices created a common law by drawing on

customs across the country and rulings by monarchs These rules

develoed organically and were rarely written down -y contrast,

+uroean rulers drew on #oman law, and in articular a comilation of

rules issued by the emeror 3ustinian in the 0th century that was

rediscovered in ''th4century Italy 5ith the +nlightenment of the ')th

century, rulers in various continental countries sought to roduce

comrehensive legal codes

Civil "aw is the most widesread tye of legal system in the world, alied

in various forms in aro6imately '7& countries It is also referred to as

+uroean continental law The civil law system is derived mainly from the

#oman Corus 3uris Civilus, 8-ody of Civil "aw9, a collection of laws and

legal interretations comiled under the +ast #oman 8-yantine9 +meror

3ustinian I between AD 7%) and 707 The ma*or feature of civil law

systems is that the laws are organied into systematic written codes In

civil law the sources recognied as authoritative are rincially legislation

4 esecially codi;cations in constitutions or statutes enacted by


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governments 4 and secondarily, custom The civil law systems in some

countries are based on more than one code'

According to the CIA 5orld


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the doctrine of stare decisis in common law *urisdictions, a rior decision

by a court is binding on any courts deciding future cases 5hile it is true

that the doctrine of stare decisis comels common law lawyers to treat

cases as law, the lac1 of stare decisis in civil law *urisdictions does notdiminish the relevance of cases in the legal research rocess Moreover,

statutory law and legislation are growing in imortance in common law

*urisdictions The reality is that many lawyers in civil law *urisdictions do

begin their research in cases and many lawyers in common law

*urisdictions begin their research in legislation Attorneys in both

*urisdictions ultimately must consult all sources of law to do thorough

research

In civil law *urisdictions that re*ect stare decisis, cases constitute only

ersuasive authority Some civil law *udges cite and interret Civil Code

articles, legislation, other cases, treatises, regulations and administrative

decisions Many lawyers in civil law *urisdictions do word searches on fact

atterns to ;nd the Civil Code articles and legislation, etc, that have been

alied to those facts by other *udges In the ast, there was a

resuosition that only lawyers in common law *urisdictions would search

using words reresenting fact atterns

At this *uncture, it is necessary to have some broad, but ertinent,

observations about the nature and scoe of legal research in the common

law and civil law systems

In the common law system, "egislature enacts substantive law +6ecutive

wing of a State, drawing authoriation from a substantive law,sulements the substantive law in the form of rules, regulations,

statutory orders, noti;cations and byelaws 5hile courts, as and when

called uon, interret the ?law2 and gives ;nality to it through their *udicial

ronouncements Courts, articularly higher ones, however, do not only

?aly2 law to the ?facts2 and ?issues2 brought and agitated before them

but also, through their *udicial ronouncements, ?ma1e2 law% They are,

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generally, bestowed with wide *udicial discretion They are emowered to

determine ?legality2 as well as ad*udicate ?;nality2 of ?law2 or ?legal

rovision2 The lower courts are bound by ?recedent2 In the common law

system, therefore, the basic assumtion is that if there is a *udicialdecision in the ast having facts and legal issues similar to those in the

case currently before the court, the outcome of the ast case should

control the outcome of the resent case Therefore, in the common law

system "egislature, +6ecutive as well as 3udiciary do constitute ?source2 of

law A legal researcher, with a view to understanding ?law2 on a articular

toic or sub*ect, therefore has to ?locate2, ?areciate2 and analye at

Acts of Parliament, subsidiary legislative instruments, if any, and *udicial

ronouncements @e has to focus his attention on the rimary source

materials, li1e the Constitution and Statutes 8along with statutory

instruments9, and leading *udicial ronouncements 8the recedents9

-y contrast, in the civil law system, Acts of Parliament, sulemented by

aroriate #egulations and Directives, if any, do constitute ?rimary2

sources of ?law2 Courts are re.uired only to ?aly2 them In no way, they

are e6ected to ?ma1e2 law through their *udicial ronouncements @ence,

the law of recedent, unli1e in common law *urisdictions, is irrelevant

!evertheless, a *udicial statement of a higher court may have an

insirational or ersuasive value in terms of its reasoning In civil law

system, a legal researcher, with a view understanding law on a toic,

therefore, has to merely concentrate on the rimary sources of law

@owever, there is hardly any material di/erences in the nature and scoe

of legal research in these two legal systems4 the common law and the civil

law system In both the systems, broad strategy and utility of legal

research is ali1e They only di/er in their emhasis on the material

re.uiredused for carrying out legal research A legal researcher from the

common law *urisdiction relies heavily uon, and gives imortance to,

aroriate statutory materials 8the Constitution, statutes and other

statutory instruments9 and case reorts 8including case comments and

case digests9 for ascertaining areciating law on her toic or area of


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research 5hereas a legal researcher from a civil law system focuses and

rominently relies on the statutory materials for ascertaining and

areciating law >nder both the legal systems, a researcher has to resort

to identical methods of data collection and of analysis when he isinterested in highlighting ?social dimension of law2 or ?ga2 between the

legal idealism and social reality or assessing ?imact of law2 on the social

behavioral attern

Thus it is very much relevant to understand that it is not the system or

mechanism which matters, but the e/ectiveness of the system The larger

goal on which this whole legal research should rely on should be its

aroach towards the marginalied and vulnerable grous of the society

Bibliography and References

' -en*amin Cardoo, The !ature of 3udicial Process , 'B Eale >

Press 8'B9% 3ohn -ar1er, #esearch Myths About Common "aw F Civil "aw

3urisdictions, Gct '), %&'& at ,

htt:solutionswolters1luwercomblog%&'&'&research4myths4

about4common4law4civil4law4*urisdictions( S-, 5hat Is the Di/erence -etween Common and Civil "awH, The

+conomist, 3uly '0, %&'( at ,

htt:wwweconomistcomblogseconomist4

e6lains%&'(&economist4e6lains4'& The Common "aw and Civil "aw Traditions 8School of "aw, >niv of

California, -er1ely %&'&9 hereinafter The #obbin CollectionJ,

htt:wwwlawber1eleyedulibraryrobbinsCommon"awCivil"awTraditionshtml

7 The 5orld

critical analysis on legal research in civil law countries and common law countries

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