Thursday, February 25, 2016

Civil Law versus Common Law





Groundhog Day as an Analogy



This week, I taught my Qatari students the difference between Common Law and Civil Law systems.  As I heard myself explain the major differences, I found myself wondering which system might be "better."

In doing the research for the class, I learned that the civil law system has the widest application worldwide.  About 150 countries have adopted it.  Born in Europe and derived from Roman law, it found its most famous expression in the Napoleonic Code of France. 

The idea behind it is simple.  The code organizes the law in a small book, easily accessible by the common man, who then knows with much greater clarity his or her legal rights and the procedures required to enforce those rights.  That citizen does not need to review -- at least in theory -- any case that has applied a particular section of the code.  Instead, the code serves as the primary authority and judges applying it are not bound by legal precedent created in earlier cases.  The text says what it says and that is enough.

The civil code legal system is like the film Groundhog Day, especially when Bill Murray's character, Phil Connors, wakes to the same day and fails to learn any new lessons of life.  At the same time, while faced with the same set of daily events or "facts," he is free to create whatever day he deems appropriate. 

One website describes the plot of the movie this way:
A weather man is reluctantly sent to cover a story about a weather forecasting "rat" (as he calls it). This is his fourth year on the story, and he makes no effort to hide his frustration. On awaking the "following" day he discovers that it's Groundhog Day again, and again, and again. First, he uses this to his advantage, then comes the realization that he is doomed to spend the rest of eternity in the same place, seeing the same people do the same thing EVERY day.
Another website further explains:
Murray plays Phil Connors, an arrogant Pittsburgh TV weatherman who, during an assignment covering the annual Groundhog Day event in Punxsutawney, Pennsylvania, finds himself in a time loop, repeating the same day again and again. After indulging in hedonism and committing suicide numerous times, he begins to re-examine his life and priorities.
In other words, a judge working in a civil law system handles each new case as if he has never seen a case like it before.  It is a whole new "Groundhog Day." 


Common law systems, in contrast, build on history.  Judges in these systems make rulings by applying the applicable law to the facts of the case.  They look to prior cases or precedent for analogies to the pending case, they distinguish similar cases, and they create new caselaw where none controls the particular situation pending before them. 

Using the Groundhog Day analogy, the common law system reflects Phil Connor's growth later in the movie, when he begins to learn from his experiences and tries to become a better man worthy of the love he seeks.  Each day he builds on the knowledge gained the "day" before even though he lives the same day over and over.

I know.  It is not a perfect analogy.  But, I do hope it captures some of the differences for my students.

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