Common vs Civil Law

[Papewaio]

Instead of going even more off topic in the Hilda thread.

With the different approaches to law. How does EU law interact with UK law ie Civil Law interfacing with Common Law.

My understanding one states what you can do, the other what you can't.

[Conradus]

I always found that difference overrated. They share the same sources for the most part and ever since the EU, the largest part of any national legislation is decided at the EU-level.

[Rhyfelwyr]

From what I understand, common law is more organic, in that it is based more on traditions rather than following strict rules.

Whereas civil law is more arbitrary and codified. Everything comes down to the letter of the law, and that's it.

First point though - there is no "UK law". English law applies to England and I think more or less Wales and Northern Ireland. Then you also have Scots law, which is obviously for Scotland and is as far as I know sort of a split between common and civil law, and I remember hearing it took a lot of inspiration from Dutch law.

[Conradus]

Yeah Scotland was still more closely connected to the mainland than England when they first wrote down their laws.

But we have to remember that both common and civil law are based on the same sources, the codices of Justinianus which served as a basis for all written laws in Western Europe since the 11th century.

[Sarmatian]

I always found that difference overrated. They share the same sources for the most part and ever since the EU, the largest part of any national legislation is decided at the EU-level.

Indeed. There's very little practical difference between the two law systems. The difference is mostly how the law is created and how it can be modified, but the end product can be very well the same. Two ways to achieve the same purpose.


Instead of going even more off topic in the Hilda thread.

With the different approaches to law. How does EU law interact with UK law ie Civil Law interfacing with Common Law.

My understanding one states what you can do, the other what you can't.

International regulations trump national regulations. In theory, UK, or any other country, can not create a law in conflict with international treaties it signed. Also, it shouldn't sign international treaties which are in conflict with national laws and regulations.

There was an interesting episode when Milosevic was extradited to the Hague. Serbian constitution forbids extradition of Serbian citizens to foreign court, but due to international pressure, Serbia recognized the Hague tribunal earlier, so we had a huge legal quagmire. On one hand, the highest national act forbade it, but the international treaty we signed demanded it. In the end he was extradited, as we all know, and legally. When you recognized ICJ, you agreed to all its rules.

That's why US didn't sign the document about international court(s). Once signed, it has to be followed, even though US could ignore any international regulation with impunity.

[Brenus]

“My understanding one states what you can do, the other what you can't.” The problem is to know which one…

[Papewaio]

International treaties do not automatically trump national law. A treaty can be broken with consequences.

However no international law should have moral authority without due representation. It is a broken system when democratic governments kowtow to non democratic international bodies. Yes it is possible to have benign dictatorships. Courts of Law are a bit different as we normally do not elect judges, we elect the law makers instead.

As for civil vs common. I suspect it can be a bit more messy in some areas where assumed knowledge is left. It would also in my eyes require more verbiage to describe the same Act so as to cover both civil and common law interpretations.

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As for the US it is not able for an international treaty to trum its p national laws as that is part of their Consitution.

[Sarmatian]

International treaties do not automatically trump national law. A treaty can be broken with consequences.

Everything can be done with consequence. I can kill a man with consequences, but that doesn't mean murder is legal.


However no international law should have moral authority without due representation. It is a broken system when democratic governments kowtow to non democratic international bodies. Yes it is possible to have benign dictatorships. Courts of Law are a bit different as we normally do not elect judges, we elect the law makers instead.

We're not talking strictly EU. There's a huge number of various international bodies which most of the democratic nations are a part of. If you're a member of WTO, you have to follow the rules. In an ideal case, you harmonise your internal regulation to conform to international regulations and you don't create new regulations which are in conflict. What happens otherwise? Well, some very small irregularities are overlooked, bigger ones usually bring some kind sanctions, depending on the severity and power and influence of the country.

That's how it works and there's nothing undemocratic about it. Yes, a country surrenders a bit of its sovereignty but it does so willingly and knowingly. If you want to a member of the club, you have to play by the rules. If you don't wanna do that anymore, you simply leave the club. You can not change the rules for yourself and still continue to be a member. Thinking that there's something undemocratic if you can't shows the lack of understanding what democracy really is


As for civil vs common. I suspect it can be a bit more messy in some areas where assumed knowledge is left. It would also in my eyes require more verbiage to describe the same Act so as to cover both civil and common law interpretations.

International organizations don't create laws or force how a law should be written. They set guidelines, like every country in the EU is supposed to allow free flow of capital, work force blah, blah, blah... German and British law don't have to be the same in that regard, only the effect has to be the same.


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As for the US it is not able for an international treaty to trum its p national laws as that is part of their Consitution.

Yes, to become a part of it, they would have to change their constitution. Ideally, they would do so first if they ever change their minds, but in reality it sometimes happens that countries sign something that isn't in accordance with its constitution, which creates a legal quagmire.

To sum up, yes, international law trumps national law, speaking strictly legally, but international law is unenforceable. There isn't a legal body you have to answer to, unlike in national law.

[Conradus]

To sum up, yes, international law trumps national law, speaking strictly legally, but international law is unenforceable. There isn't a legal body you have to answer to, unlike in national law.

It depends on the viewpoint. Legally, there are (here in Europe that I know of) two theories. The first states that international law trumps national law, if that international law is clear enough of itself and doesn't require any further national implementations. Also, it had to be the wish of the parties to the treaty that it should trump national law directly. Belgium's highest Court subscribed to this vision in 1971.
A second theory states that international law only comes into effect when it is ratified in a national law. Later national laws could change that law, and, since it is just a normal law, it cannot trump the higher national sources of law (such as the constitution). Here there is no precedence for international law. The Belgian Constitutional Court follows this theory.

That said, most international bodies don't issue binding laws/regulations. The EU and Council of Europe (with the ECHR) are notable exceptions. As is the UN Security Council in certain, very limited matters. There are very few others.

[Furunculus]

My understanding one states what you can do, the other what you can't.

Pretty much.

As Isaiah Berlin noted, there must be a dividing line between individual liberty and public authority and that it is a matter for debate, within society, as to where that line should be drawn. However, to draw parallels between what is done in this country and what is done in another is not at all helpful because a peoples conception of what constitutes liberty is the result of its cultural history. An appeal to consensus among the polities of europe does nothing but suppress the best compromise for your polity.

English Common Law with its roots in the concept of Natural Law has led to a presumption of negative liberty; I am free to do anything that which is not specifically proscribed by the law. Rights are defined as being against interference by the sovereign in the liberty of individual on matters of religion, speech, press, assembly, and free markets.

Continental Civil Law with its closer association with Legal Positivism has led to a presumption of positive liberty. It is my right, as codified in the system of laws, to be able to act in this manner. Rights are defined as things you are allowed to do by the sovereign such as freedom of religion, speech, press, and assembly. You are enabled to do these things.

Thus can we understand that British popular objection to ID cards is not merely a function of conditioning, as some imagine has already been experienced by our continental neighbours, rather it is a direct result of a particular understanding of where the divide should be between individual liberty and enabling supervision.

We simply do not have the same view of the state as the enabler of our freedom.

[Papewaio]

Well the US like Australia, Canada, India and New Zealand inherited it from UK.

Given that all these countries punch above their weight in economic and democratic stability... Surely there is a case for having that as the basis of international law? - Bias as I am a Kiwi-Aussie with a UK parent.

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As for the EU being an international body. One would have to be so Eurocentric to belive that Europe is the whole world. It is as international as a baseball World Series...

[Sarmatian]

Both systems are great, in that they are rooted in the search for justice through honest investigation and rational analysis. In practice, both systems have proven that they are only as just as the people in charge, and neither is free from corruption or does a better job than the other of serving up that 'blind' justice we all want.

But if I had to pick one, I'd pick Common Law, because that's what I, as an American, have grown up with. :shrug:

Both systems try to achieve same things. There isn't really better or worse as there are examples of both working rather well. It's more of a what's one used to.




As for the EU being an international body. One would have to be so Eurocentric to belive that Europe is the whole world. It is as international as a baseball World Series...

Doesn't international mean "between nations"? It can be two or 20 or 199 nations, as long as it's more than one, it's international. Nothing to do with Euro-centrism. Likewise, NAFTA is an international organization, OPEC is...

Or my understanding of English failed me here, and the word international can only be used if it includes every single nation?


It depends on the viewpoint. Legally, there are (here in Europe that I know of) two theories. The first states that international law trumps national law, if that international law is clear enough of itself and doesn't require any further national implementations. Also, it had to be the wish of the parties to the treaty that it should trump national law directly. Belgium's highest Court subscribed to this vision in 1971.
A second theory states that international law only comes into effect when it is ratified in a national law. Later national laws could change that law, and, since it is just a normal law, it cannot trump the higher national sources of law (such as the constitution). Here there is no precedence for international law. The Belgian Constitutional Court follows this theory.

That said, most international bodies don't issue binding laws/regulations. The EU and Council of Europe (with the ECHR) are notable exceptions. As is the UN Security Council in certain, very limited matters. There are very few others.

Depends on the organization, but most political and those that deal with the economy issue binding laws/regulations. Depending on the organization, usually the members themselves decide on that. But, nonetheless, all those organization require certain rules be implemented and/or followed.

[Furunculus]

i think its a joke about the US calling its premier baseball event the World Series, even though only itself and japan really care about the game.

a certain amount of ego-centrism is involved. ;)

[Beskar]

Depends on the organization, but most political and those that deal with the economy issue binding laws/regulations. Depending on the organization, usually the members themselves decide on that. But, nonetheless, all those organization require certain rules be implemented and/or followed.

I think it is often used in context with the UN. So international law is law passed by the United Nations and its various bodies.

[Conradus]

Well the US like Australia, Canada, India and New Zealand inherited it from UK.

Given that all these countries punch above their weight in economic and democratic stability... Surely there is a case for having that as the basis of international law? - Bias as I am a Kiwi-Aussie with a UK parent.

=][=

As for the EU being an international body. One would have to be so Eurocentric to belive that Europe is the whole world. It is as international as a baseball World Series...

Here we use the word 'international' for any law which goes beyond the merely national scope. The EU is an international organisation because it unites more than one nation; it's also a supranational one. But perhaps the world multinational is better suited?
As for the basis for international law. Civil and common law systems are both pretty equally spread across the globe. That common law got some pretty shiny examples seems to be more an effect of other things that of the civil or common law in itself. I wouldn't consider it an argument.

Pretty much.

As Isaiah Berlin noted, there must be a dividing line between individual liberty and public authority and that it is a matter for debate, within society, as to where that line should be drawn. However, to draw parallels between what is done in this country and what is done in another is not at all helpful because a peoples conception of what constitutes liberty is the result of its cultural history. An appeal to consensus among the polities of europe does nothing but suppress the best compromise for your polity.

English Common Law with its roots in the concept of Natural Law has led to a presumption of negative liberty; I am free to do anything that which is not specifically proscribed by the law. Rights are defined as being against interference by the sovereign in the liberty of individual on matters of religion, speech, press, assembly, and free markets.

Continental Civil Law with its closer association with Legal Positivism has led to a presumption of positive liberty. It is my right, as codified in the system of laws, to be able to act in this manner. Rights are defined as things you are allowed to do by the sovereign such as freedom of religion, speech, press, and assembly. You are enabled to do these things.

Thus can we understand that British popular objection to ID cards is not merely a function of conditioning, as some imagine has already been experienced by our continental neighbours, rather it is a direct result of a particular understanding of where the divide should be between individual liberty and enabling supervision.

We simply do not have the same view of the state as the enabler of our freedom.

I don't know if I can subscribe to that idea. Continental law is based on the same principles as English law. If something isn't forbidden, it's allowed. The Code Napoleon and everything that derives from it honor this principle. The entire Belgian financial and fiscal droit depend on it.




Depends on the organization, but most political and those that deal with the economy issue binding laws/regulations. Depending on the organization, usually the members themselves decide on that. But, nonetheless, all those organization require certain rules be implemented and/or followed.

Yes, but a distinction has to be made between internal rules of an organisation and international law imo. The conventions of the ILO, or the WHO are not legally binding ( ECJ ruled on that for instance a couple of years ago).

[Kralizec]

My understanding one states what you can do, the other what you can't.

Yeah, that's a flawed distinction that has no actual basis in reality.


With the different approaches to law. How does EU law interact with UK law ie Civil Law interfacing with Common Law.

In civil law systems there's a hiearchy of rules. Usually it's the constitution, then regular statutes, general principles of justice (which may or may not trump statutes), rules made by local administrations. In some civil law countries international treaties can have a direct effect ("monist") and trump statutes, on the reasoning that treaties are also approved by the legislature and in addition there's the aspect of diplomatic obligations.
Also; in the case that two statutes (being rules of equal formal status) conflict there are a variety of grounds on which a judge can apply one and not the other:
- the newer rule trumps the older one
- the more specific rule trumps the general one
- reconstruct what the intention of the legislative body was/must have been
- throwing dice, flipping a coin, divining the entrails of sheep

In the original English system there's a very simple hiearchy, namely that statutes enacted by Parliament trump anything else and that all statutes have equal force. Compared to civil law, common law systems have much fewer statutes and rely more on jurisprudence, so the chance of two statues being in direct conflict is smaller. However with the addition of EU regulations (and the UK Parliament passing more statutes of its own nowadays) that chance is now significantly greater. In the old days English judges could solve this (partially) by interpreting a statute restrictively and concluding that one of them does not apply; but as far as EU law is concerned English judges are not the final authority for interpretation.

AFAIK, the UK got around this by a clause in their Communities Act which establishes the supremacy of EU law, and every statute since then is understood to have an exception "unless EU law/the Communities Act says otherwise" by implication.