202507100838 - Spamann (2024) - Civil V. Common Law, The Emperor Has No Clothes
Resumo da Obra
Escreva um resumo conciso da obra, destacando os pontos centrais, o contexto histórico e os temas principais abordados.
Conexões
202506071202 - Komárek (2013) - Reasoning with Previous Decisions, Beyond the Doctrine of Precedent
Citações e Passagens Relevantes
INTRODUCTION
“The distinction between common and civil law legal systems is one of the most used concepts of legal discourse.” (Spamann, 2024, p. 3) [… “U.S. judges also use the distinction, often contrasting “our ” common law to the perceived shortcomings of the civil law , a rhetorical practice with a long history.” (Spamann, 2024, p. 3)
“When law students learn “comparative law” in the U.S. or elsewhere, they primarily learn about the common/civil law distinction.” (Spamann, 2024, pp. 4-5)
“The distinction ’s core is historicalgenealogical: common and civil law refer to the legal systems of England and Continental Europe, respectively, and their respective zones of legal influence, which cover most of the world.” (Spamann, 2024, p. 7) […] “To believe preeminent writers, common and civil law stand, inter alia, for “distinctive mode [s] of legal thinking,” different “attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system,” or different “legal culture[s],” tout court. According to a widespread belief, common l aw is characterized by case law, civil law by its rejection.” (Spamann, 2024, p. 7)
“This Article argues that such essentializations are baseless, and provides a more sober, evidence-based account of common vs. civil law.” (Spamann, 2024, p. 7) “After a brief review of the distinction’s historical roots in Part I, Part II begins by dismantling the myth that the civil law resists judicial precedent. Civil law is full of precedent. Or at least, its Western European paragon jurisdictions are; others may not be.” (Spamann, 2024, p. 7) […] “The problem, shows Part IV, is that beneath superficial continuity, what are commonly referred to as common and civil law have morphed throughout history much like a caterpillar morphs into a butterflywithout the genetic pre-programming. As a result, it remains mysterious what common and civil law even are, other than a haphazard collection of superficialities genealogically traceable to England and the Continent, respectively.” (Spamann, 2024, p. 7)
“Viewed soberly then, the common and civil law “legal families” are (only) like language families (e.g., Romance languages , Germanic languages). In both types of families, common historical roots manifest in similar vocabulary and grammar or, in the case of legal families, concepts, categories, and institutions.” (Spamann, 2024, p. 8) […] “However , neither type of family represents cultural or other substantive traits.” (Spamann, 2024, p. 8) […] “Similarly in law, what little systematic empirical research there is shows little cultural or other substantive difference between common and civil law, if any.” (Spamann, 2024, p. 9)
“None of this is to say that all legal systems are alike. To the contrary, the Article argues that major intra -family differences are one reason why generalizations are improper, or at least difficult. The Article also acknowledges and documents systematic inter-family differences, but insists that these are on the formal, not cultural or otherwise substantive level.” (Spamann, 2024, p. 9)
“The empirical nature of the common/civil law distinction is independent of the jurisprudential level at which it is pitched. One can be empirical about the positive law / doctrine (i.e., the law in the books), how it is actually applied (i.e., the law in action), or how people think and talk about it, to name just the major perspectives one could take. This Article will roam across all three because that is what the literature on common/civil law does.” (Spamann, 2024, p. 10)
“The Article self-consciously remains at the object level of common/civil law differences and of methods appropriate to capture them. It eschews the meta question how and why people write and think about the differences the way they do, and what feedback effects to the object level, if any, this might have.” (Spamann, 2024, p. 11)
I. A WORKING DEFINITION OF THE COMMON/CIVIL LAW DISTINCTION
“This Part proposes a thin, genealogical working definition of the common/civil law distinction by sketching its histor ical background. The terminology of common and civil law originates in differences of legal development in England as compared to the rest of Europe, both of which spread (parts of) their law to most of the rest of the world through colonization and imitation.” (Spamann, 2024, p. 12)
“On the Continent, legal development from the 11th century onwards was gradually shaped by the study of the Corpus Juris Civilis – hence the name “civil law.” The Corpus was a compilation of Roman law ordered by Byzantine emperor Justinian and mostly completed by 534 AD.” (Spamann, 2024, p. 12)
“However, university study of the Corpus gave Continental lawyers shared concepts, terminology, and a method that gradually infiltrated their local laws and enabled a continent-wide legal discourse.30 The canon law of the Church, also taught in the universities, and itself influenced by Roman law, provided another focal point, especially for the development of judicial procedure.” (Spamann, 2024, p. 13) […] “Owing to this and other differences within Continental Europe, some see greater utility in the (sub-)categories Romanistic (France, Italy, Spain, Portugal, etc.), Germanic (Germany, Austria, Switzerland, etc.), and Nordic law than the generic civil law.” (Spamann, 2024, p. 13)
“England stood apart. England created a centralized court as early as the 12th century. This court (and later centralized courts, plural) created its own uniform terminology and procedure for the entire country: hence its name, the Common Law.” (Spamann, 2024, p. 13) […] “As a result, English law developed and maintained terminology, concept s, and institutions that are markedly distinct from Continental Europe, as discussed in subsequent Parts.” (Spamann, 2024, p. 14)
“As a result, one can, on a superficial level, recognize most of the world’s legal systems as belonging to either the civil or common law today. In common law countries, the legal language is English, whereas in civil law countries it is not (in Latin America and Africa, it is mostly French, Portuguese, or Spanish). Until recently, court dress (only) in most common law jurisdictions included a wig. Common lawyers know the term and concept of “consideration,” whereas civil lawyers do not.46 Common lawyers learn the law of consequential damages from Hadley v. Baxendale [1854], whereas civil lawyers learn it from their civil code or another case. Common law judges are (mostly) appointed from seasoned practitioners, whereas civil law judges join the bench right out of law school (although here at the latest we start getting into exceptions, depending on what counts as a common law country, see Part III below). And so on.” (Spamann, 2024, p. 15)
“Legal families thus resemble (and largely coincide with) language families. Within families, language s are distinct and often not mutually intelligible anymore.” (Spamann, 2024, p. 16) […] “The language analogy alone can explain why lawmaking in the European Union had so much difficulty dealing with the United Kingdom and Ireland when these common law jurisdictions joined what was previously a civil law club.” (Spamann, 2024, p. 16)
“So much is clear. The question for the rest of this article is: Is there anything more to it than that? Are there differences between common and civil law that go beyond “language” in a broad sense? Do they operate differently, do they embody a different culture?” (Spamann, 2024, p. 17)
II. THE MYTH THAT CIVIL LAW ESCHEWS PRECEDENT
A. Precedent is Everywhere
“The importance of precedent is plain to see in civil law countries such as France or Germany. Standard reference works for practitioners in these countries are essentially compilations of precedent. Clearly, the whole point of these reference works is that precedent is an indispensable, major part of the law in those countries, such that practitioners could not afford to ignore it. In particular, the lower courts follow the highest courts virtually without exception. In opinions of the highest courts, citations to precedent have been found to be as frequent in Germany as in England or the United States.” (Spamann, 2024, p. 19)
“Precedent in France or Germany is not merely a statistical predictor of the (higher) courts’ whims; it has normative force. One indication is the aforementioned use of precedent by the highest courts, which would make no sense if the courts attached no horizontal normative force to it. There are also many rules that implicitly or even explicitly recognize binding force of precedent and the ability of courts to create law.” (Spamann, 2024, p. 20) […] “This would make little sense if one did not expect the lower courts to bow to the authority of the highest court, i.e., if precedent had no vertical force, and if the highest court did not thus make law.” (Spamann, 2024, p. 20)
“Some think that precedent in the civil law is a new development. This is also false. Before codification, precedent had become an important part of the Continental ius commune of the 16th-18th centuries. Continental codification in the 19th century was meant to supersede the old body of precedent, but not to impede the development of new precedent interpreting, developing, and supplementing the codes.” (Spamann, 2024, p. 21)
“This ubiquity of precedent should not be surprising. Precedent is essential for a stable development of the law, as law in general and statutes in particular are necessarily incomplete. Precedent may even be inevitable, as H.L.A. Hart pointed out : “This is so because, if courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what the rules are.”” (Spamann, 2024, pp. 22-23)
B. Sources of Misunderstanding
“A likely source of misunderstanding is ambiguous formalist characterizations of precedent in civil law countries. First, “civilians” frequently deny that precedent is “a source of law.”” (Spamann, 2024, p. 23)
“Second, civil law systems do not generally have a rule that precedent must be followed (stare decisis) (with some modern exceptions for decisions of constitutional courts). However, common law jurisdictions developed stare decisis in this rule-sense only in the 19th century. Yet common law judges clearly followed precedent long before then, and can still avoid following precedent through distinguishing and overruling today. Lower courts can be faulted for not following a higher court’s precedent, or for not following “the law, the content of which the higher court already explained last time around.”” (Spamann, 2024, pp. 23-24)
“Third and finally, there is the prohibition “to pronounce judgment by way of general and regulatory dispositions” in Article 5 of the French code civil and its copies in other countries.” (Spamann, 2024, p. 24)
“Another source of misunderstanding may be the existence of systematic codes. Almost all civil law countries have such codes for basic areas of law (contract, torts, property, criminal law, procedure, and often others), whereas most common law countries do not, at least outside procedure and criminal law. The consequence is that junior law students in civil law countries will learn basic doctrinal concepts such as offer and acceptance primarily from books keyed to a code, whereas their colleagues in common law countries will learn from a book primarily keyed to old cases. But these basic rules provide little more than the vocabulary, and perhaps the search terms or an organizing principle for secondary literature, to discuss the actual questions of relevance in practice.” (Spamann, 2024, p. 25)
“To the extent statutes can govern, statute is nowadays the dominant source of law everywhere, and it has always been supreme. “If an English lawyer wants to know what the law is, his first inquiry will be whether the point is governed by statute ... The English lawyer’s second inquiry would relate to the activity of the judges. He would want to know whether there were any reported cases on the point." I surmise that this description is true for lawyers almost anywhere in the world, including the civil law world, and certainly in France and Germany.” (Spamann, 2024, p. 26)
C. The “How” of Precedent”
“Consequently, the expert literature discusses not if precedent exists in civil law countries, but whether there are differences in how it operates relative to common law countries.” (Spamann, 2024, p. 26)
“The easy part of such comparison is the institutional environment in which precedent operates, such as the organization of courts, the number of judges, and the number and form of published opinions.” (Spamann, 2024, p. 26)
“The hard part of such comparison is the actual operation of precedent. For example, how binding is precedent? Given the possibilities of distinguishing and overruling, bindingness is far from binary.106 Identifying the boundaries of permissible distinguishing and overruling is notoriously difficult even in domestic law.” (Spamann, 2024, p. 27) […] “An experimental study of judging around the world found no differences between common law judges (U.S., India) and civil law judges (Argentina, Brazil, China, France, Germany): all ignore precedent more or less equally, and there are only small and unsystematic differences in the attention they pay to statutes and precedents.” (Spamann, 2024, p. 28)
“These subtleties can easily lead to misunderstandings. In particular, there is confusion about whether precedent only obtains legal force in numbers, i.e., when courts have decided the same way multiple times (“jurisprudence constante”).” (Spamann, 2024, p. 28) […] “But then, common lawyers also feel comfort in writing, e.g., “this court has consistently held.”” (Spamann, 2024, pp. 28-29) […] “Still, a single decision establishes a precedent that, e.g., lower courts follow. For instance, the German Supreme Court imposed malpractice liability on a lawyer for ignoring a single precedent.” (Spamann, 2024, p. 29)
III. WHICH COUNTRIES ARE WE TALKING ABOUT, ANYWAY?
“This Part reports the startling observation that different authors have in mind rather different countries when they talk about common and civil law. For the civil law, most mean France, Germany, and a few other Western European countries, while others mean Latin America and even Asia. For the common law, some mean England, others mean the United States. At a minimum, this is confusing, as what is true about one choice of representative is often not true about the other.” (Spamann, 2024, p. 30) […] “If it were clear what civil and common law are, then there ought not to be much disagreement about which countries qualify.” (Spamann, 2024, p. 30)
“However, there are unacknowledged major disagreements about which countries are typical for civil and common law, respectively.” (Spamann, 2024, pp. 30-31)
“For the civil law, most standard comparative law textbooks and handbooks published in the US and Europe treat France and Germany as paradigmatic for the civil law.” (Spamann, 2024, p. 31)
“In stark contrast, the book most cited and used in the U.S., Merryman’s “The Civil Law Tradition,” declares France and Germany to be atypical of the civil law. The book acknowledges that “[e]ach of these nations has made a major contribution to the civil law tradition, and each still occupies a position of intellectual leadership in the civil law world.” However, the book contends that “neither is a ‘typical’ civil law system. Indeed, they are in a sense the least typical of all. The French revolutionary ideology and the French style of codification had only a limited impact on German law. German legal science has never really caught on in France. Elsewhere in the civil law world, however, there has been a strong tendency to receive and fuse both influences. This is particularly true in Mediterranean Europe and Latin America, but it also applies to some extent to most other parts of the civil law world.”” (Spamann, 2024, pp. 31-32)
“For the common law, there is agreement that the “Anglo-Saxon” countries (Great Britain, Ireland, USA, Canada, Australia, and New Zealand) are its core, and the other former British colonies its periphery.” (Spamann, 2024, p. 32) “There is disagreement, however, about the paragon. For many, it still is England, alone or together with the United States. But others, usually Americans, contend that it is (only) the United States.130 Often, they make this move implicitly by associating with “common law” traits that are primarily American. This includes Merryman. His articles use the United States as the common law representative. His book includes U.S. legal features that England never had among those that separate common law from civil law, notably judicial review of legislation and legal realism, and one that England used to have but no longer has, the right to a civil jury.” (Spamann, 2024, pp. 32-33)
“For now, what is important to emphasize is that comparing England to France and Germany is rather different than comparing the U.S. to Chile, Italy, and Indonesia. Contemporary English and U.S. law differ tremendously. So do, e.g., French and Italian law, let alone French and Indonesian law. The choice of comparison countries will therefore make a big difference for the conclusion. It is thus essential to know what countries are typical for common and civil law, if any.” (Spamann, 2024, p. 34)
IV. TRADITIONS?
“This Part discusses in more detail what people mean when they say that some jurisdiction epitomizes the common or the civil law.” (Spamann, 2024, p. 35)
“As the historical origin (see Part I above) of the terms “common law” and “civil law” suggest, all authors explicitly or implicitly define these terms by appeal to their history, i.e., they identify them with traditions.” (Spamann, 2024, p. 35)
“Other authors’ definitions may mention history merely as one among several criteria, and others do not mention it at all. It is clear from their discussions of common and civil law, however, that they too see an intimate, even causal connection between the relevant current attributes and the history.” (Spamann, 2024, p. 36)
“So, what is this ostensible “civil law tradition”? Superficially, it may be true that “the civil law tradition” begins in Rome in 450 B.C., as Merryman and others maintain.” (Spamann, 2024, p. 37)
“In classical, republican times, Roman law was casuistic, equity-based, developed largely by unpaid aristocratic jurisconsults, and had neither the code nor the general theories, such as contract. To the extent it resembled modern law at all, it resembled the modern cliché of the common law. By the Byzantine times, Roman law had ossified, culminating in emperor Justinian's Corpus Iuris. The Corpus was a largely unsystematic collection of prior sources. To the extent it resembled any modern code at all, it would be the unsystematic U.S. Code rather than the systematic restatement of the law in the French or German civil codes.” (Spamann, 2024, p. 37)
““the civil law tradition” in Europe was partly built by successive schools of medieval jurists annotating (“glossing”) and commenting on Justinian's Corpus, and particularly the Digest. Since the 19th century, civil law jurisdictions characteristically have systematic codes for basic areas of the law that are the organizing principle for hordes of commentators collecting other sources—resembling none of the prior periods.” (Spamann, 2024, p. 38)
“There simply does not appear to be a “civil law tradition” in terms of operation, values, and thinking, the less so the further back in time one traces the civil law.” (Spamann, 2024, p. 39)
V. TRUST THE EXPERTS?
Nessa seção o autor vai tentar refutar os argumentos mais gerais de dois conhecidos manuais de direito comparado para demonstrar que o argumento da diferença entre civil law e common law não é bom, e ao refutar os melhores, refuta-se o argumento como um todo.
“This Part argues that there are many reasons not to. Part V.A argues this point abstractly. Psychology and statistics suggest that expert intuition stands virtually no chance when the task is so complex and provides no opportunity for feedback learning. The point is a no-brainer in neighboring disciplines like ethnography or political science. Part V.B reviews additional issues with the specific claims and authors quoted above. Its section 1 impeaches the credibility of Merryman, who hardly had familiarity with the object he was writing about. Section 2 reveals glaring deficiencies even in the most sustained attempt to support Zweigert & Kötz’s statement by Pierre Legrand, another preeminent comparatist . If these preeminent comparatists’ intuitive judgment cannot be trusted, it stands to reason that no one’s can. The Part concludes with a few more examples.” (Spamann, 2024, pp. 43-44)
O primeiro argumento é quanto à falta de feedback adequado para que a intuição dos experts em direito comparado possa ser confiável, o que apenas levaria a um reforço dos estereótipos já consolidados a respeito do tema.
“Research on expertise strongly suggests, however, that reliable expert intuition only develops if budding experts receive frequent, immediate, and reliable feedback on their judgments. 180 Comparatists comparing groups of legal systems do not receive such feedback.” (Spamann, 2024, p. 45)
“Comparative claims also lack “feedback”—or quality-control, if you will—from a knowledgeable audience.” (Spamann, 2024, p. 46)[..] “Hardly anyone has lived experience in more than one jurisdiction, let alone in dozens (the scope of common/civil law claims). The audience can imagine the foreign jurisdiction(s) to be such that the comparative claim would be true.” (Spamann, 2024, p. 46)
“Ultimately, common/civil law comparison is simply too broad, and questions such as “flexibility vs. certainty” too complex, for any expert to have the requisite direct experience. Nobody can know more than two or three legal systems reasonably well. Common and civil law, by contrast, comprise dozens of countries. In fact, given the complexity of modern legal systems, one can doubt if any individual can fully know even a single legal system (the hyper-specialization of legal practice in the U.S. suggests the answer is no).” (Spamann, 2024, pp. 47-48)
O Autor contesta as alegações de outros grandes comparativistas para reforçar seu ponto, de que não há evidências empíricas de uma grande diferença entres os sistemas.
“Merryman provides no evidence that could be refuted. Indeed, as already mentioned, his claims are too sweeping and amorphous for serious empirical study, at least within practical constraints of time and money. In short, Merryman cannot be engaged on the evidence. Merryman openly relished his audience’s inability to check his claims. These seem good reasons not to take his claims seriously. Nonetheless, his has long been the most popular comparative law book in the United States by far.” (Spamann, 2024, p. 52)
VI. REALITY CHECK
Aqui o autor começa relembrando as dificuldades de demonstrar empiricamente se existe diferenças práticas entre os sistemas.
“At the other epistemic extreme, we know next to nothing about the question raised at the end of Part I: do common and civil law differ in their operation, dynamic, or culture? As discussed in the prior Part, these are not directly observable even within one legal system.” (Spamann, 2024, p. 62)
“The only study observing at least a proxy for “thinking ”—judges’ document use while deciding a case in the lab—did not find differences between judges from the common law (US, India) and the civil law (Argentina, Brazil, China, France, Germany).” (Spamann, 2024, p. 63)
Mas apesar de o autor considerar não haver muitas alegações comprovadas de diferenças essenciais entre os sistemas, existem algumas pontos em que realmente existem diferenças.
A diferença pode estar na organização judicial
“Another noteworthy difference is the organization of the courts.276 While common law jurisdictions only have one judiciar y of genera l jurisdiction, civil law jurisdictions also tend to have special judiciaries, most importantly administrative courts and , at least in Europe , a constitutional court. 277 Moreover, in the French model, the administrative courts are nominally part of the administration.278 If this seems shocking, consider that until 2009, the United Kingdom’s apex court, the Appellate Committee of the House of Lords, was technically a part of the legislature.” (Spamann, 2024, p. 70)
Ou então na parte procedimental
“The well-known labels inquisitorial/adversarial are more confusing than helpful for civil/common law comparison. Contemporary civil law judges do not investigate cases, as the term “inquisition” translates , and they certainly do not torture people, as it insinuates.294 It used to be different, of course, but then “we” used to try witches. Today, courts all over the worldor at least in the jurisdictions customarily studied—follow an adversarial procedure in the sense that they primarily respond to claims formulated and evidence proffered by the parties, including by the prosecutor in criminal matters. Civil law judges may play a greater role in admitting or denying certain evidence, and they may be considerably more involved in the questioning of witnesses.295 That, however, is better described as case management, and it comes in degree. The difference is larger i n criminal matters, where civil law judges may have and use the power to request evidence sua sponte.” (Spamann, 2024, p. 73) […] “Still, the differences are subtle. For example, when Latin American countries imported plea bargaining, billed as a common law invention, they did so using German legislative models.” (Spamann, 2024, p. 73)
“The precise contours of these differences are hard to ascertain because they differ from jurisdiction to jurisdiction and perhaps from court to court, and because they have more to do with how standards are handled in practice than how they are formulated in the abstract.301 Still, this is a widespread perception among attorneys practicing international litigation including arbitration.” (Spamann, 2024, p. 74)
“In any event, correlation is neither necessary nor sufficient for a meaningful common/civil law link. That is, the mere fact that some institution, rule, or other trait is more prevalent in jurisdictions considered to belong to the common or civil law for historical or institutional reasons hardly links that trait to the common or civil law in a meaningful way.” (Spamann, 2024, pp. 77-78)
“In particular, the former colonial powers provided legal templates long after their formal rule ended, and to a lesser extent still today.326 This means that whatever rules such a power—especially England and France—adopted, was likely or at least likelier to spread throughout its sphere of influencewhich is largely congruent with legal family lines. Common/civil law probably had something to do with this in as much as the much greater familiarity of concepts, language, etc. within families facilitated spread. But if that is the mechanism that generates correlations of legal rules with legal families, then the shared content of the rules says nothing about the “essence” of the common or civil law understood as single-jurisdiction systems; it only says something about the common/civil law as conduits for the spread of (random) templates and ideas.” (Spamann, 2024, p. 80)
“The broader point is that essences must be inferred, which is inherently fraught. There are good pragmatic and epistemic reasons to resist the urge. For policy, vague “essences” are mostly useless. To help effectuate change, comparisons must identify concrete institutions or cultural traits that could be manipulated to generate a desired result. Epistemically, observing whether such manipulation does indeed have the expected result is ultimately the only way to test the veracity of a causal claim.342 If that is not possible, one should at least rule out alternative explanations, i.e., explanations that have nothing to do with common/civil law.” (Spamann, 2024, p. 83)
CONCLUSION: THE EMPEROR’S NEW CLOTHES
“In summary, the common/civil law distinction isn’t all that it is cracked up to be. The distinction has a true and useful core. Starting in the 12 th century, English law did develop a little apart from the Continent, generating differences that the European powers spread around the globe in colonial times (Part I). This history has left a residue of shared terminology, rules, and institutions with in each group (Parts I, VI.B). This generates a family resemblance akin to language families and sustains more intensive intrafamily exchange to this day (Part I). Beyond that, however, there is little that has empirical support. Equating the common/civil law distinction with the case/statute law distinction is wrong; at most, there are differences in the how of precedent, but even more so within each group (Part II).” (Spamann, 2024, pp. 83-84)
“Ultimately, this article’s point is basic: much of what is written about common/civil law does not have nearly the evidentiary support it purports to have. As the foremost protagonists of the genre, Merryman and Zweigert & Kötz served as the main examples, but the problem is generic, as repeatedly indicated. To be sure, there is room and even need for hypothesizing . In academic writing, however, hypothesizing should be clearly marked as such, and it should be compatible with the evidence that is already available. Academic writing—footnotes, university presses, and all—signals as much.346 Living up to this expectation is important. For our audience, it is the difference between being informed or being duped.” (Spamann, 2024, p. 85)