CHAPTER 1 HISTORICAL ORIGINS OF CIVIL CODE LEGAL SYSTEMS
| Jurisdiction | United States |
(Feb 1991)
HISTORICAL ORIGINS OF CIVIL CODE LEGAL SYSTEMS
Dabinovic & Asociados
Buenos Aires, Argentina
"Life, liberty and property do not exist because men have made laws. On the contrary, it was a fact that life,liberty and property existed beforehand that caused man make laws in the first place".
Frederic Bastiat1
The purpose of this paper is to explain to lawyers trained under Common Law principles the nature of mining property in those countries subject to a system that is essentially statutory.
In order to achieve this objective I have considered it essential to define the features that characterize the two legal systems and determine their basic differences.
Since I do not have a mastery on the Common Law system, I have sought provision of information from an excellent book by Phanor J. Eder, who taught me comparative law in a course for Latinamerican lawyers which I attended at New York University.2
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Almost four decades have passed since that exposure to the American law system and, although the basic principles learned at that time are still in force, legal practice has not been immune to the changes that have occurred during a period in which there have been so many sweeping changes in the economic and social relationships of the western world.
I therefore call to my professional experience not to amend but rather to qualify with some reflections the illustrative references of my memorable teacher.
Similarity of the principles
Eder considers that the Christian world is divided into two legal systems; "one deriving directly from Roman Law, the other from the Anglo-American or Common Law. The truly basic and fundamental principles of both systems I conceive to be alike.3
I agree with this assertion but consider it advisable to make it clear that the identity between the systems is not the result of a mere coincidence since it is difficult to conceive that the tremendous cultural impact of the extended Roman presence in England should not have had an effect on the customs and on the consequent perception of the law on the part of British judges.
This idea is confirmed by the significant fact that the "corpus juris" was taught at Oxford.
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On the other hand it should be borne in mind that the admirable legal system enacted by Justinian, that is the fertile root of the contemporary system of Civil Law systematized and rationalized principles of natural law previously laid down by secular traditions and customs which are themselves the roots of Common Law.
In this connection J.R. Coquia states that "the purpose of the digest of conduct, that covered substantially the entire body of Roman private law, was to extract the spirit of jurisprudence from the decisions and the conjectures, the questions and disputes of the Roman civilian" and then added "from the view point of form, law is divided into written (jus scriptum) and unwritten (jus non-scriptum). The unwritten law is founded on custom. Ancient custom being sanctioned by the consent of those who adopt them are like laws. The law falling into desuetude might be abrogated by general custom".4
Customs were therefore not merely a source of inspiration of jurists but rather a substantial part of Roman Law and in agreement with this philosophy of the law, English judges, in the absence of precedents, also looked for justice in customs and tradition, that is to say that they did not create but, as Roman jurists did, they discovered the law.
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I do not wish to minimize, with this comment, the formal differences that distinguish the two legal systems but rather to emphasize that they are more of a methodological nature than a conceptual one, since both seek by different roads a similar principle of justice that cannot be unconnected with the soul of the people. The source of the two systems is therefore Natural Law which moral content may be expressed in San Agustin's proverb: "an unjust law is not law at all".
For Ulpian Natural law was "what nature teaches on living beings" and for Cicero "lex caelestis", i.e. right reasoning (recta ratio). Consequently the latter considered that when conflict occurs between recta ratio and the positive law, no doubt the positive norm is not necessarily law in the true sense.
This criterion transpired in the thinking of the Doctors of the Roman Catholic Church and later on Richard Hookes (1533-1600) interpreted the political and legal theories of Thomas Aquinas to fit them into Anglican Protestantism".5
Influence of the philosophic currents
With the passing of time the supremacy of the various philosophic currents left deep marks in the essence of both systems.
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It is true that the rationalist thought, with its background of arrogance and consequent authoritarianism, found more fertile ground in a system that conditions the law to the will of princes and legislators. H. Kelsen's legal positivism caused therefore serious damage to the philosophical essence of the first Roman Law.
But the Common Law system which in the short term is by nature more stable and less vulnerable to philosophic fashions, has not been nevertheless immune to such influences, since the precedents that shape case law are subject as Eder says "to the daily test of experience", and judges that have to construe these changes in circumstances and customs adapt their opinions, perhaps without realizing it, to the criteria of the prevailing philosophy.
As an example, the influence of the positivist philosophy of law has transpired in United States's Court decisions of a constructive nature which have modified the Common Law tradition concept of equality before the law. Reference should be made to the school of opinion known as "legal realism" inspired in the philosophy of Judges Oliver Werdell Holmes and Jerome Frank and the social scientist Karl Llewelyn who attribute to judges an unusual extent of discretionary authority and creative powers in the interpretation of the laws. According to this theory "there is no government of laws, only a government of men (judges) who can do whatever they jolly well feel like subject only to
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the constraints of their own temperaments and what others in society will tolerate".6
In countries where Civil Law is enforced it is often said ironically that "The Constitution says what the judges say that the Constitution says" a cynical adage which corresponds to the slogan of Justice O.W. Holmes, one of the most influential and renowned magistrates of Common Law: "Law is a prediction of what courts will decide".
What happens under both systems is that man, call him legislator or judge, is the one who determines or interprets the law and in the last instance his convictions are expressed in a particular concept of justice.
On the other hand, there is nothing more expressive as to the importance of philosophic or political ideas in the legal spheres of Common Law countries than the political conflict resulting from the periodic renewal of the Supreme Court of the United States membership.
In such occasions, Congress men who must give their consent to the appointment of the new magistrate do not consider only for that purpose his intellectual merits and professional background, but examine with suggestive insistence the candidate's ideology and question him on matters of purely philosophic nature.
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The mere reference to a "liberal court" as over against a "conservative court" makes it evident that the rights of the citizens of the United States are dependent upon the philosophic criterion of those having the responsibility of interpreting the scope of constitutional guarantees.
Certainty and rigidity of the law
Apparently, Civil Law has two faces. A positive one that presents the advantage of the legal certainty granted by the written law and a negative side derived from the lack of flexibility of the written laws in the sphere of a dynamic and unpredictable world.
I emphasize the word "apparent" because as a matter of fact neither the pointed out virtue is conclusive or the deffect insuperable.
The fact is that Civil Law is not a static body of legislation since if that were the case it would have no relationship with the concept of justice in a society that permanently extends its knowledge, discovers new roads in the eternal and insoluble search for the truth, modifies its moods and customs, alters its modes and develops new philosophies that affect its behavior.
A permanent legislative updating is also furthered by the proliferation of legal norms and regulations that are in line with the growing intervention of the State in the economic and social relationships of the community.
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It should be mentioned, as a case in point, that at the time of writing these paper the register of Argentine legislation records 23.852 laws that in turn are regulated by ten of thousands of decrees of the Executive Branch of the Government that conditions litigious situations.
Although many of these rules have been annulled, or falling into disuse, their very number makes evident the difficulty of establishing a guideline of justice by means of written law in a changing and every day more complex world.
It is a general principle within the Civil Law that no person may invoke in its own defense ignorance of the law, an impossible knowledge in the light of such an abundance of legislation since, in the best of cases, only a trained lawyer is in a position to subtract from this legislative tangle the particular legal rule that applies to the right of his client and that so not spontaneously but rather after a careful and sometimes difficult analysis of provisions which are often contradictory, obscure or ambiguous.
It should be stated that this uncertainty does not apply to rights and obligations regulated in Codes which by their...
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