I'm Professor Claire Germain from the
University of Florida College of Law.
And this class is part of the Global
Student's Introduction to the Law of the
United States.
Today, we're going to talk about legal
traditions, the common law and civil law.
The United States is known as a Common Law
country.
But you may also know that most of Europe
and Latin America are known as Civil Law
countries.
So, what do these terms mean, and what
does it mean in today's world?
The common law and civil law traditions
stand out among the variety of
legal systems, because they're known in
countries
which are advanced economically and pretty
powerful.
Now they also are witness to a lot of
history and culture.
And they have much relevance today.
As you can see from this map, this
color-coded map from the University of
Ottawa, in blue you can see the common law
countries, starting in England.
Then, you can see Australia, New Zealand,
the
North American continent, the United
States, and Canada.
And then you can see in blue, or part of
blue, part of Asia, part of Africa.
The civil law countries are indicated in
red, so it started in continental Europe,
and
then was exported to parts of Asia,
Central and Latin America, and part of
Africa.
As you can see from the other colors, you
know, there
are some countries in yellow which follow
the customary legal tradition.
Some countries which are more oriented
toward
religion, a religious system, like Muslim
law.
And then finally some mixed legal systems,
which are inherited the
features from the civil law, from the
common law, from other tradition.
So this gives you a rough indication,
indication of legal traditions.
Now, why is legal history relevant today?
The famous French philosopher Pierre
Teilhard
de Chardin, said one time, everything is
the sum of the past, and
nothing is comprehensible except through
it's history.
For the civil law tradition, which is the
oldest one,
we have to go back all the way to Roman
law.
Civil law comes from the latin Jus Civile,
which
means in Roman times, the law applicable
to Roman citizens.
And it, what happened in the 533, in the
sixth century Emperor Justinian, who you
see on this image.
Who was the emperor ruling over the
Byzantine Empire.
Justinian commissioned a codification of
Roman law, called the Justinian code.
And that compilation was kind of lost
after the 6th century, for a few
centuries.
But then, it was rediscovered in the
medieval universities.
So starting toward the end of the 11th
century in Bologna, Italy, medieval
scholars rediscovered the text and started
reading
it and annotating it, commenting on it.
And trying to use the Roman law principles
and adapting them to contemporary needs.
So, what happened was truly amazing,
because scholars came from all over
Europe.
They studied the text, and then they went
back to their countries, and they
established universities.
So they established [UNKNOWN] in Paris in
the
middle of the 12th, 13th century in 1253.
Then they went back to Oxford to Cambridge
to Spain to other countries of Europe.
And they all, the text was in Latin, they
read Latin, they spoke Latin.
So it led to the formation of what's
called a use commonly like common law of
Europe.
That Corpus Juris Civilis, which became
the body of Roman law, as
you can see, you have the original text,
which is in the middle.
And then on the side you see commentaries,
which are also called glosses.
And then further you have additional
commentary.
And the book that you have here was
actually printed in 1522,
and it comes from the University
of Florida Legal Information Center
collection.
So, it shows you how much admiration the
scholars of the
time had for the Roman law principles, and
how they adapted them.
So, at civil law, then we now know that
Roman
law was rediscovered in the Middle Ages at
the universities.
And law was developed as a scholarly
activity by professors.
So, if you're talking about law as an
academic subject, you're talking
about a rule of law, a formulation of law,
which is rather abstract.
And its still the case today, when you
study law at a French university,
or a German university, or a Spanish
university, you're going to have a lot of
lectures.
Professors write a lot of treatises, when
you
want to read about the law, you read
treatises.
So it's still pretty much a scholarly
activity.
Let's skip over a few centuries after the
medieval times.
When the era of the nation state arose,
then
many countries codified their laws in the
19th century.
So these codes were inspired by Roman law
principles, by Canon law,
religious law And by the natural, law
movement of the 18th Century.
Law being the product of reason.
And that, codification movement gave rise
to the French civil code in
1804, to the German civil code, which was
more scientific in 1900.
And the French civil code served as a
model for other countries, and you can see
the picture of er, Napoleon who was the
main architect of that French Civil Code.
And interestingly enough, many of this
codes were
inspired by the organization of the
Justinian codes.
So it was organized of thing, of persons,
of things, of property, of obligations.
It, this codes encompassed the entire body
of private
law, dealing with the law relative to
private persons.
Let's turn away from the civil law now,
and go to the common law legal tradition.
The United States is a prototype of a
Common Law country.
It's legal system and tradition is based
on English law, and the law
itself was formulated, non, not in an
academic way by scholars.
But it was developed up on a case-by-case
basis by judges.
How did that happen?
We have to go back all the way to 1066 and
the Battle of Hastings.
You remember William the Conqueror who was
the Duke
of Normandy, invaded England, became the
King of England.
He imported his strong laws and central
administration,
which, and then that's what started the
royal courts.
And then one of his descendants King Henry
II Plantagenet, established the permanent
royal courts in London.
So that was a major factor.
So at that time then the young lawyers,
the law students,
the judges, read and studied the law not
in the universities.
There were universities, Cambridge,
Oxford, but that
was more for clerics or academic topics.
To learn the law, you went to the Inns of
Court.
So there were where the courts were, and
they were
called Inns because the students stayed,
they lived in those courts.
They lived in those Inns.
And they still exist.
Today, if you want to admit, be admitted
in the legal profession in England,
you have to be admitted by one of the Inns
of court, different buildings.
>> Now a common law, the law it was
born out of procedure, there's the notion
of precedent.
The principle which states that all
authority, if you have a case, it can
be, that earlier case can be binding
or persuasive on later decisions,
subsequent cases.
Students were trained at the Inns of Court
and in today's law schools, in an American
law school you learn the law by reading
case books, not really reading treatises.
The major works of the time were not
treatises, but they were case reports.
Like for instance, this book that we have
in
our collection at the University of
Florida, 1577, it's called,
La Graunde Abridgement, which is kind of
in a
mixture of French and English, and it's a
case report.
When you wanted to present a case in
the court system, you couldn't just go to
court.
You had to present to, have a writ, which
was authorized by the royal court,
like for instance here, a writ of
trespass,
which is one of the forms of torts.
So that's also from our the collection of
the Florida library.
So no treatises we're written in England
until the 17th Century with Edward Cook,
and
particularly 18th Century Sir William
Blackstone, who
wrote the Commentaries on the laws of
England.
Which is really the first major treatise.
Formulating the body of the common law of
England.
So you see in Europe, continental Europe,
lots of treatises in England,
court decisions, and then finally in the
18th century, a major treatise.
So, two different legal traditions.
Now, law is tradition, but law is also
language.
Now do realize then when you watch the
movie, like
Miami Vice, the TV show or another police
TV or movie.
Many words that you hear come from
medieval Law French, also called Norman
French.
For instance, in the modern legal
language, you
will hear words such as trespass, voir
dire,
which mean say the truth, which is the
procedure which is used to select jurors
for jury.
You hear grand jury, petit jury,
plaintiff, breaking and entering, will and
testament.
All these words come from, through the
Duke of Normandy, they come through the
French.
And then it became part of the legal
language of the Royal Courts during the
medieval times, and then it continued up
until today, and up until today's time.
Now just for you to know, the reason there
are sometimes two
words to say the same thing like breaking
and entering, will and testament.
It's because one is English and one is
French,
and many people didn't really understand a
lot of French.
But you know how it is with doctors or
lawyers, they
like to use terms that are esoteric, that
regular people don't understand.
So that was part of it.
Now, we talked about these different legal
traditions.
But, today, there was a convergence of the
civil law and the common law traditions.
First of all, in civil law, the code is
built
on the fact that it regulates relations
among private individuals.
But since the industrialization of the
19th century government has intervened
a lot so there, there're lot more
legislation beyond the codes.
In common law countries there was not that
much
government intervention, but now there are
a lot of codes.
The United states has the US code, state
codes, regis, administrative regulations.
That's one fact.
Another fact is the constitutional review
of legislation.
Which was not common in civil law
countries where there was a legislative
supremacy.
But now there are constitutional courts in
almost every country.
Another factor is the emergence of
supranational
legal norms, especially within the
European Union.
All the countries whether they are civil
law
or common law like England and Ireland,
are converging.
Their legal systems are converging,
because of
the International norms of the European
Union.
Which is a brand new system which is in
effect in these countries.
So as you can see there is also a blurring
of the civil and
common law traditions as to the results to
be achieved in a westernized society.
So some scholars are talking now about the
importance of calling that
tradition, the western legal tradition,
rather than common law, civil law.
How ever there's still significant
differences in
the mentalities, the legal reasoning
method, the styles
of argumentation, even the general
organization and
methodology of law, legal education and
judicial process.
You're going to hear a lot more about how
things are in the United
States, and that will allow you to reflect
on your own legal system.
If you're a student from a different
country.
[BLANK_AUDIO]
Some American and English law ideas that
are useful,
that are distinct, part of the distinct
American culture.
The first one would be the concept of
supremacy of law,
that even the state is subject to review,
according to constitutional standards.
The tradition of precedent, and then also
the notion of
the trial as an adversarial trial, often
before a jury.
Which is very different from the concept
in civil law
countries of a more inquisitorial trial,
led by the judge.
In the U.S., in the common law country the
trial is led, really, by the parties.
There is a clash between the parties,
that's how the truth will emerge.
So, in conclusion, as you can see from our
previous conversation, law is steeped in
history and tradition.
At the same time, the globalization leads
to the convergence of systems.
So you will hear more on this, in the
different classes to come.
So I hope to see you next time.
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