Andrea Pin (University of Padua - Department of Public Law) has posted Common Law, Civil Law, and Supranational Law: Clashes of Interpretation (Fordham International Law Journal (Forthcoming)) on SSRN. Here is the abstract:
The article argues that a fundamental misunderstanding has seen common law and the civil law trend in the same direction and become closer together. This understanding is based on a particular notion of the role of the judiciary and of legal sciences more broadly, which entrusts courts with the power to develop the law incrementally and piecemeal, making the law evolve outside or beyond the political process. This approach underestimates the difference between adjudication cultures and how they understand legal interpretation and legal change.
Although commentators often look for similarities, the differences between the legal culture of common law and civil law systems are particularly visible in how common law and civil law treat—and often respect—precedent and pursue legal development. Contrastingly, in the civil law tradition, precedent has increasingly been seen as an engine of change.
The article largely deals with the apex courts and scholarship in Australia, Canada, England, and the United States and their treatment of statutory precedent. It then considers the transformation of the French legal culture as exemplary of the continental judicial style more broadly and the role exerted by the Court of Justice of the EU and of the European Court of Human Rights on it, whose pattern of interpretation was supposed to accommodate both common law and civil law countries but has often failed to amalgamate them. It finally uses the growing British skepticism toward pancontinental jurisdictions, which culminated in Brexit and that still questions the British obligation to respect the European Convention of Human Rights to reflect on the gap still existing between common law and civil law. The article concludes by suggesting that reading civil law and common law as trending in the same direction through adjudication downplays a critical difference in how the two traditions understand the role and significance of legal interpretation–a misunderstanding that may turn out to be counterproductive to legal integration and should be avoided to respect the characteristics of both legal styles.
Highly recommended.
