Change for whose sake.

AuthorPerry, William J.
PositionRelative merits of civil and common law systems - President's page

At this October's International Corporate Counsel College, we discussed the relative merits of the civil law and common law systems, starting with the drafting of contracts and concluding with their relative merits in litigation. Our principal guest speaker, the former Chief Justice of the French Cour de Cassation (Supreme Court equivalent) pointed out that (a) common law is in a minority worldwide (60% civil law and 40% common law); (b) it is the common lawyers who see there as being competition between the systems (he referred particularly to the English Commercial Court as consciously taking measures to improve the attractiveness of England as a forum and of English law to foreigners); and (c) that, in effect, there were "horses for courses" and that what was best in any given case really depended on the quality of the lawyers. Unsurprisingly, perhaps, that conclusion was widely backed by the in-house counsel present.

One of the besetting sins of the legal world today (as with the rest of the world) is the desire constantly to tinker with systems in order to achieve marginal improvements. Sometimes such changes are made in the name of "modernisation." For example, some 12 years ago, Lord Woolf and his team completely rewrote the rules of England's Courts, consciously deciding to discard centuries of precedent in favour of a brand new "user-friendly" version. One of the standard jokes about the new system is that they replaced the extremely impenetrable phrase "third party proceedings" with the eminently user friendly and understandable "Part 20 Defendants." The substantive changes they made were mainly useful, but in fact could easily have been accommodated within amendments of the existing rules. It has taken 10 years for the changes to bed down.

My point is not that systems do not need to be amended or updated, as plainly they do occasionally, but that change for change's sake is wrong. An imperfect system operated with commitment and understanding is better than a tweaked system where no-one is quite sure what is intended; the gains will be only marginal even it is properly operated, there are likely to be friction losses as the change takes place, and there is always the risk of unintended consequences. In the end, the system will remain imperfect: all systems are. Change needs to be well-considered, measured and to draw upon the experience available.

Equally, while there is some attraction in the comments by Supreme Court Justice...

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