Americanlaw

PRESENTATION

Americanlaw

The Similarities and Differences between the Common Law and the Civil Law traditions.

START

summary

Part 1 : Similarities and differencies

Similarities

differencies

a- Different philosophical reasoning

a- similar universal purpose

B- Sources of law that intersect

B- The role of the judge

C- Mixed systems, living proof of convergence

C- The procedure: adversarial vs inquisitorial

D- Training of lawyers

summary

Part 2 : Our professional opinion : the Common Law is better

Argument 1:

Argument 3:

Common Law is alive, Civil Law is frozen

The distinguishing, a tool for concrete justice

Argument 2:

Honest concession

The democratic transparency of dissenting opinions

Part 1 : Similarities and differencies

Part 1 : Similarities and differenciesA- The same purpose

The legal systems (American and French) have the same objective: to organize society, protect rights and guarantee legal security.

Despite their differences, the two traditions share universal fundamental principles (presumption of innocence, fair trial, etc.).

The law is a reflection of the values of an era, as shown by the example of Bradwell v. Illinois (refusal of women in certain professions in the 19th century).

B- similarity of sources

• The distinction between Civil Law and Common Law is exaggerated: in practice, both systems use both written laws and case law.

• Judges, even in the United States, are bound by law, as in civil law.

• In modern practice, systems come together (e.g. agencies like the FDA, standards management), with similar mechanisms to organize the hierarchy of rules.

There are mixed legal systems that combine Civil Law and Common Law, as in Louisiana and Quebec. These systems serve as legal laboratories, showing that the two traditions can coexist and complement each other.

C- A lively convergence: mixed systems

The European Union also promotes this hybridization by bringing practices from different systems closer together, creating a form of third legal tradition.

Deductive vs Inductive

Differencies A- a philosophical difference

The key difference lies in the mode of reasoning: deductive in Civil Law (from the general principle to the concrete case) vs inductive in Common Law (from the concrete case to the principle). In Common Law, the judge may create the right in the absence of an existing rule, as in Riggs v. Palmer.

The Common Law offers more flexibility thanks to techniques such as distinguishing, making it possible to adapt precedents.

‘the mouth of the law’

- Montesquieu

Passive arbiter vs creator of rights

B- The role of the judge

- The role of the judge is very different: in Civil Law, he applies the law in a brief and strict way, while in Common Law he creates and explains the law in a developed way. - The Common Law values a moral and interpretative dimension of the judge, inherited from traditions such as that of Solomon and “equity”. - Judges can produce law and debate publicly (e.g. Miranda v. Arizona and the dissenting opinions), which reinforces the evolution of law, unlike the more closed civil system.

Adversarial vs Inquisitorial

C- The procedure

Procedure is a major difference: inquisitorial in Civil Law (the judge conducts the investigation) vs accusatorial in Common Law (the parties compete before a judge arbitrator).The American adversarial system stems from a historical tradition of confrontation, often linked to Viking practices such as the Thing. Common Law is based on a logic of confrontation and negotiation (cross-examination, plea bargaining), very different from the civilian model centered on the judge’s direct search for the truth.

D- Legal culture and the training of lawyers

Legal training differs greatly: Civil Law, more theoretical and doctrinal; Common Law, more practice-oriented and focused on solving concrete cases (moot courts).

The common law system is historically more professionalized and specialized (barristers / solicitors), which reflects a vision of law as an argumentative practice rather than a normative science.

In Common Law, practitioners and lawyers directly influence the law, notably through legal briefs and experts, unlike in Civil Law where the doctrine remains more academic.

Part 2 : our opinion

Argument

Argument 1 : Commun law is alive when civil law is frozen

Common Law is a flexible law that adapts to situations thanks to judges, unlike Civil Law, which is more rigid because it is based on written codes.

Argument 2: The democratic transparency of dissenting opinions

Common Law promotes democratic transparency thanks to dissenting opinions, which make the judicial debate public and understandable, unlike Civil Law where decisions remain more opaque.

Argument

Argument 3 : The distinguishing, a tool for concrete justice

The Common Law allows a more concrete justice thanks to the distinguishing, which gives the judge the possibility of adapting the rule to real situations, unlike the more rigid Civil Law.

Honest concession

Common Law is less accessible to the general public than Civil Law, but this complexity is the price to pay for greater flexibility and more equitable justice.

Conclusion

The two legal systems, Common Law and Civil Law, tend to come closer in their common objectives of protecting freedoms and framing society.However, the Common Law is distinguished by its ability to privilege the concrete justice of the particular case rather than the rigidity of the texts. Thus, by obliging the judge to seek the right solution for each case himself, he develops a more demanding but also more flexible and adaptive system.

Thank you for listening to us !

bibliography

https://www.uscourts.gov/about-federal-courts/educational-resources/educational-activities/fifth-amendment-activities/miranda-v-arizona/facts-and-case-summary-miranda-v-arizona “Miranda v. Arizona: Facts and Case Summary.” United States Courts, n.d. https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf “Plea Bargaining Research Summary.” Bureau of Justice Assistance, n.d. https://www.persee.fr/doc/ridc_0035-3337_2013_num_65_3_20263Muir Watt, Horatia. “The Circulation of the American Legal Model.” Revue internationale de droit comparé, 2013. https://droit.cairn.info/revue-droit-et-societe-2017-3-page-571?lang=enDezalay, Yves and Garth, Bryant G. “Globalization and the Circulation of Legal Models.” Droit et Société, 2017.

https://www.nycourts.gov/reporter/archives/riggs_palmer.htm Riggs v. Palmer, 115 N.Y. 506 (New York Court of Appeals, 1889). https://www.actu-juridique.fr/civil/common-law-et-droit-continental-labsence-de-culture-juridique-commune-est-elle-un-mythe “Common Law and Civil Law: Is the Absence of a Shared Legal Culture a Myth?” Actu-Juridique, n.d. https://supreme.justia.com/cases/federal/us/83/130/The Slaughter-House Cases, 83 U.S. 130 (Supreme Court of the United States, 1873). https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?params=/context/lalrev/article/5822/&path_info=2__Tetley.pdfTetley, William. “Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified).” Louisiana Law Review, 1999. https://www.law.berkeley.edu/wp-content/uploads/archive/2017/11/CommonLawCivilLawTraditions.pdf“The Common Law and Civil Law Traditions.” University of California Berkeley School of Law, n.d.