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February 05, 2004

Code v. Common Law

Just a random thought: As we learn about the U.C.C. we get another chance to think about the pros and cons of a "continental" system of law—where every law is written into statutes, or codified—versus a common law system, where the law develops sort of evolutionarily through judicial decisions, each building on the other. My thought is this:

Codified or "continental" systems are very "modern" in the sense of 19th and 20th century modernity and its almost infinite belief in the perfectability of systems and human progress. When you set out to write every law into formalized statutes, you seem to be making a sort of implicit claim that it's possible to eventually write the law down exactly as it ought to be, in its most perfect form, and thereby have a complete and perfect system of law. Codified law assumes solid foundations and fixed rules.

On the other hand, common law systems are actually more "postmodern" in the sense of postmodernity's rejection of the idea of perfectability and certainty in almost every subject. By refusing to write the laws down in explicit, formal form, you're implicitly admitting that you'll never get the law "right" -- you'll never find the perfect statement or formulation that captures the law as it "ought" to be, in its best form; therefore, you're admitting that this decision is merely temporary, applicable to this set of facts only, and subject to change by all future decisions. Common law assumes contingent foundations and differance.

Yes? No? Is anyone familiar with any scholarship on this subject?

Posted February 5, 2004 05:11 AM | law school


Before I started law school, I read a little bit of Blackstone, and was taken with the whole evolution of the common law thing. But I'm now wondering if the courts (American courts, at least) have exercised a bit too much poetic license over the past century or so.

Posted by: Jerry McCusker at February 5, 2004 01:09 PM

We're doing UCC 2-207 and the proposed amendments in my contracts class right now. It seems like this specific section highlights the problems of the continental system. Pretty much any nuanced problem in this section ends up being solved in basically a common law sort of way, what are the real terms, are other terms additional or are they different, which should be kept or dumped. A judge will make a decision based on what facts he has available in that instance and to an extent on how he feels about that situation. It makes a strong case to me about the limitations of a codified system.

Posted by: Antonio at February 5, 2004 09:03 PM

As a lawyer trained in a continental law system and currently doing my LL.M in a common law system, I am always surprised by the fact how much common law people want to highlight their specificity and higher quality. Please, open your eyes and you'll see that the differences are ultimately much smaller than they seem...

A code is always the product of "keeping and dumping" as Antonio calls it, regardless of the system. And, believe it or not, continental codes are also subject to interpretation by judges. If you think that our law school education is limited to the reading of codes, you are wrong. Codes are a starting point, they give you the general framework. In my point of view this is a more efficient solution, since it gives you the information you need in one line, whereas you would need a 10 pages case under common law (if you're lucky enough to have a well-edited case-book...), while still giving the judges sufficient rooom for adapting the case to the particular circumstances. A fatal misunderstanding among common law lawyers is that civil law codes tend to regulate every little detail of life. A closer look at a civil statute will show you that the rules are not as detailed as generally thought.

So this is my message to US law students, look beyond superficial differences to the underlying similarities. And for those of you who are still not convinced, there is only one cure: take your LL.M in a civil law country once you're released from law school over here...

Posted by: Anonymous at February 8, 2004 10:12 AM

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