For a long time, scholars have been classifying most legal systems around the world as falling within one of two inherently different categories: common or civil law systems. While the former (common law), rooted in England and practiced also in the US, involves precedent or deference to previously published judicial opinion; the latter (civil law), practiced in continental Europe and elsewhere in the world, does not - or so many still think.
In this episode of the CLE vlog series, Prof. Holger Spamann (Harvard Law School) examines the myths and the reality of common and civil law with Alessandro Tacconelli (ETH Zurich). After a brief explanation of the alleged differences between the two systems and the history of such distinction, Prof. Spamann explains the findings of some of his work on the topic. In his paper ‘Judges in the Lab,’ he and his co-authors recruited 299 real judges from seven major jurisdictions to judge an international criminal appeals case and to determine the appropriate prison sentence, to show that: (i) document use and written reasons did not differ between common and civil law judges, and (ii) ‘precedent effect’ was barely detectable. Similarly, in his paper ‘The Reasons Highest Courts Give,’ Prof. Spamann and co-authors quantitatively analysed 80 representative opinions of English and German apex courts in the late 19th century and early 21st century, to find that, even in 1880s, opinions of English and German courts differed in degree rather than kind and that, by the 2000s, the Germans cited precedent as frequently as the English.
Paper References:
Judges in the Lab: No Precedent Effects, No Common/Civil Law Differences
Holger Spamann, Lars Klöhn, Christophe Jamin, Vikramaditya Khanna, John Zhuang Liu, Pavan Mamidi, Alexander Morell, Ivan Reidel
Journal of Legal Analysis, Volume 13, Issue 1, 2021, Pages 110-126
doi.org/10.1093/jla/laaa008
The Reasons Highest Courts Give: England vs. Germany, 1880-1889 vs. 2007-2016
Jasper Kunstreich, Markus Lieberknecht, Heinrich Nemeczek, Holger Spamann, Stefan Vogenauer
Working Paper
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