Convergence Theory: Myth Or Reality?
Based on the demonstrated similarities and differences between the common and civil legal systems, I discussed the feasibility of their convergence. To this end, first, I presented the common and civil legal systems with their histories and structures. Then, I discussed the theory of convergence including the causes for and obstacles of the convergence between the common and civil legal systems.
- Civil Legal System, its history and structure
- Common Legal System, its history and structure
- Differences between them
- Feasibility of their convergence
Law is a powerful tool; it shapes politics, economics, and society in many various ways and serves as the foremost social mediator in relations between people. There are multiple types of laws and law legal systems. Among them, the three major legal systems are loudly pronounced across the centuries and over the many scholarly books. These legal systems are common law, civil law, and Islamic law. In this paper, however, I shall focus only on common and civil legal systems. Islamic law, despite its contributions to shape the former two, particularly common law, is beyond the scope of this essay, although I shall mention it here and there. The objective of my focus on common and civil legal systems is to demonstrate the similarities and differences between them and to discuss the feasibility of their convergence. To this end, I divide the work into two parts. In part I, I present the common and civil legal systems with their histories and structures. In part II, I discuss the theory of convergence. After the full understanding of the convergence theory and the two legal systems, I discuss the causes for and obstacles of the convergence between the common and civil legal systems and draw my conclusions thereafter.
Civil Legal System, its history and structure
Civil law is practiced in many countries around the world and has influenced many minor law systems. It is a law with a comprehensive system of rules, most of which are codified. These codified rules are what the judges apply and interpret as the main process of their work.
The fundament of the civil law was the Roman law, the codification of the rules by the Emperor Justinian, known as ‘Corpus Juris Civilis’, translated as ‘body of the Civil law.’ Over the centuries, especially in the Middle Ages, legal scholars studied and made improvements to the Corpus Juris Civilis. However, Roman law did not reach out to all parts of the Europe nor did it keep its full dominance after the collapse of the Roman Empire. Rather, it served as a ‘blank filler’ being applied only when the local customs and laws “lacked a pertinent provision on a particular matter.” Nevertheless, local rules, too, were interpreted mostly according to Roman law, making it possible for the Roman law to influence the main sources of the law.
Roman law later became codified, making the codification one of its (civil law’s) characteristics. The process of codification developed during the seventeenth century. The time’s political ideal was that of democracy, protection of property, and the rule of law. This ideal led to the creation of certainty of law through the law recordings and its uniformity. Thus, the mixture of Roman law and the local law both became codified to make up the civil law.
Common Legal System, its history and structure
The emergence of the common legal system began taking place after the Norman Conquest of England in the eleventh century. It was typical of that era that a tribe had its tribal law only relevant to itself. However, after the Norman Conquest, the whole country had a law in common, from which, in fact, the term ‘common law’ derived. The base of that law was, naturally, the precedent, using the past incidents and decisions as guidelines. In the 12-13th centuries, under the inquisitorial system in England, the principle of precedent developed “as the collective judicial decisions that were based in tradition, custom, and precedent.”
The reasoning in the common law has been case-based, meaning that a judge was bound to follow the decision of an earlier judge in the similar cases. This procedure is known as ‘stare decisis’ (but the term ‘precedent’ is more commonly used.) This allowed the judges the liberty to make law when the case was unique.
The judge-made law operated as the primary source of the common law for many centuries, before the creation of Parliament. Parliament, being an active legal institution in England, “acquired legislative powers to create statutory law.” Consequently, statutory became the new sources of the common law. The courts, however, still have and may exercise, as need arises, the law-making power.
Differences between them
The differences between the common and civil legal systems are very comprehensible. The one in their historical originations can well be seen from the previous explanations. There are, of course, other differences with respect to politics, sociology, and the criminal procedure. The foremost among these differences, however, is in terms of the source of the law. In civil law, legislation is the primary source of law. Naturally, courts “base their judgments on the provisions of codes and statutes.” By contrast, in the common law, cases are considered as the main source of law. Statutes, which also enriched the sources of common law, are considered as “incursions into the common law and, therefore, are interpreted narrowly.”
Another important difference is the level of the association with the government. Common law has widely acknowledged association with the limited government and Mahoney presents evidence that this very association is one of the main factors for the economic development.
The sociological difference is present in the appointment of the judges. In civil law, judges are usually trained and promoted separately from attorneys, whereas in common law, the judges are selected from accomplished attorneys. Furthermore, the legal academics on case law “tend to be much greater in civil law countries.”
Another difference is displayed with respect to criminal procedure. Civil law system is based upon a variant of the inquisitorial system rather than the adversarial system. The former is described as lacking a presumption of innocence. In contrast, common law enjoys the notion of ‘innocent until proven guilty’. Finally, one small difference is the role of the lawyers. In common legal system, lawyers control the courtroom. In civil legal system, however, judges dominate trials.
Feasibility of their convergence
Increasing commercial and cultural internationalization has already touched many aspects of individual countries, mainly affecting their legal and political systems and economics. The legal systems have widened to catch up with the rapid advances in other areas. Consequently, different laws merged or are in the process of merging into one system. This process is termed ‘convergence’ and convergence between the common and civil legal systems is of particular interest here.
It started a few decades ago and will probably continue for many. Yet, one may observe that this convergence is rather a necessity than a natural merging between the two long-lived legal systems. Before, however, I discuss it as a necessity, I would like to express my opinions. We now know that both legal systems experienced stages of development. At one point, for civil legal system, for example, Corpus Juris Civilis and local rules of many lands in 7-17 centuries joined together, finally in 18th century, they were codified together to make the body of civil law. The same goes to the common law. My argument is that it is natural cycle in law for laws to keep merging and converging as Time passes. Since convergence has already begun, we stand where NOW is circled in the above diagram and, at some point in future, reach the stage of full convergence.
This is my mere opinion, however. There exist already many academic and scholarly arguments and debates on this topic. Funken, for example, argues that convergence is possible and the civil law, due to “its economy and ability to quickly react to changing societal parameters,” should prevail in the legal evolution of convergence. Mahoney, however, presents evidence that countries of common law had faster economic development during the period 1960-1992, claiming that the common law is more suitable to preserve.
Despite any arguments, convergence is a necessity. In the simplest senses, it is the advantages of common law and advantages of civil law put together for the better of societies. Or in the language of businessmen, it is the contract and many other business-related laws being the same globally. Yet convergence may not happen very quickly. For one, there is a movement in favor of coexistence and cooperation of the two systems rather than their convergence. For example, promoting this movement has always been a part of the agenda of the Organization of American States (OAS). Another argument says that the convergence should only be pursued where there is “a demonstrable need and after careful consideration of the net effect.”
Jeffery, Clarence Ray (1957), “The Development of Crime in Early English Society”, Journal of Criminal Law, Criminology, and Police Science, 47 (6): 647-666, cited in http://en.wikipedia.org/wiki/Common_Law
A Malaysian perspective on politics, society, and economics, civil law and common law
Funken, K. The best of both worlds – the trend towards convergence of the civil law and the common law system, July 2003