Common Law vs. Civil Law – Prof. Holger Spamann (Harvard)

For a long time, scholars have been classifying most legal systems around the world as falling within one of two inherently different categories: common or civil law systems. While the former (common law), rooted in England and practiced also in the US, involves precedent or deference to previously published judicial opinion; the latter (civil law), practiced in continental Europe and elsewhere in the world, does not – or so many still think.

In this episode of the CLE vlog series, Prof. Holger Spamann (Harvard Law School) examines the myths and the reality of common and civil law with Alessandro Tacconelli (ETH Zurich). After a brief explanation of the alleged differences between the two systems and the history of such distinction, Prof. Spamann explains the findings of some of his work on the topic. In his paper ‘Judges in the Lab,’ he and his co-authors recruited 299 real judges from seven major jurisdictions to judge an international criminal appeals case and to determine the appropriate prison sentence, to show that: (i) document use and written reasons did not differ between common and civil law judges, and (ii) ‘precedent effect’ was barely detectable. Similarly, in his paper ‘The Reasons Highest Courts Give,’ Prof. Spamann and co-authors quantitatively analysed 80 representative opinions of English and German apex courts in the late 19th century and early 21st century, to find that, even in 1880s, opinions of English and German courts differed in degree rather than kind and that, by the 2000s, the Germans cited precedent as frequently as the English.

Paper References:

Judges in the Lab: No Precedent Effects, No Common/Civil Law Differences
Holger Spamann, Lars Klöhn, Christophe Jamin, Vikramaditya Khanna, John Zhuang Liu, Pavan Mamidi, Alexander Morell, Ivan Reidel
Journal of Legal Analysis, Volume 13, Issue 1, 2021, Pages 110–126

The Reasons Highest Courts Give: England vs. Germany, 1880-1889 vs. 2007-2016
Jasper Kunstreich, Markus Lieberknecht, Heinrich Nemeczek, Holger Spamann, Stefan Vogenauer
Working Paper

Audio Credits for Trailer:

AllttA by AllttA

[johntimbrell]

So they examined judges in a lab. I examine what goes on in practice. Judges at a lower level in the UK regularly dismiss common law arguments BUT in the higher courts, and especially in the Supreme court, the judges follow precedent. That is a fact that can be researched. You might ask why that is. My opinion is that those in the Supreme court are at the top of their profession. They cannot go any higher so they are free of any ambition to cosy up to the blackmail offered by the establishment who control the promotion of judges. The only incentive in the Supreme court is that their decisions will go down in history and most men and women like to think that when dead they will go down in history as honest decent people. That said the UK Supreme court has found a way to avoid hearing cases that might embarrass the establishment. The Judges pass the control of the first steps in presenting a case to the Supreme court to secretaries who constantly return paperwork over trifling or supposed errors so that judges never see the cases that would cause problems for the establishment. Just one example in the UK. Check out the Supreme court rule 54 regarding habeas corpus and compare with the rule 87 of the lower court rules. That highlights the corruption that is hidden.

[kayecollado]

One give-away is the word "code". If that appears in the names of statutes then you are generally dealing with a civil law mindset because the idea is that a statute encompasses all possible manifestations of the conflicts dealt with in the law, and then it is on the judges to fit particular cases into particular boxes. Under common law, the basic rule is that similar cases must be decided in similar ways. There are fewer boxes but intellectual/legal space within the boxes to be more analog rather than digital.

To say that the USA is a common law jurisdiction is a gross simplification given California - the largest state in the Union by population - and her civil code with almost 10, 000 sections. (It's less than that but that's how the numbering system is set up, and those who set it up wanted to leave a lot of room to regulate and micromanage through further legislation).

[Eatcrow]

Common law allows the people to persuade the independent judiciary to their will whereas statute law without a method to amend it is simply tyranny

[NinaKale-it]

Lying is a sin. Bearing a false witness, whivh you did after you mentioned a globe, which does not exist. Basically you are a civilian not using a common sense.

[funwithdoka]

what a waste of time, very talkative without even going to point, dislike

[Libertas]

Grossly misleading, There are fundamental differences in terms of concrete standards of living, freedom, economic efficiency, and most importantly the rule of law can hardly be said to exist in civil law based systems. The legislature has effectively no bounds of transgressions it cannot undertake

[j.robertgreene]

First observation ....the professor was using the Freemason symbolism with his hsnds. 🤡🤡🤡