The Interrelationship Between Common Law and Civil Law

Author:Guy Canivet
Position:Chief Justice, Cour de cassation (Supreme Civil and Criminal Court of France)

I. Convergence II. Hybridization


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This is a translation of Influence croise de la Common Law et du Droit Civil. The authenticity of this article was ascertained only by the author.

Chief Justice, Cour de cassation (Supreme Civil and Criminal Court of France) (Paris, France). This article has been prepared with the assistance of Ioannis S. Papadopoulos.

When we talk about the "interrelationship" between two legal systems, it is not the similarities or differences in the substantive law that really count, but mostly the different types of encounters and exchanges between the legal systems that are created in each legal culture. A legal culture is a spirit, a mentality, a set of reflexes of the legal professionals facing a practical problem. As the great jurist of the 19th century Rudolf von Jhering wrote in his book The Spirit of the Roman Law in the Different Phases of its Development,

While rules reveal themselves from the outset, while institutions and definitions of law announce themselves in their implementation, the driving forces of the law are buried at the deepest level of its intimate essence. They only operate little by little by infiltrating, it is true, into the whole of the organism, but they nowhere manifest themselves necessarily in a manner evident enough to notice them . . . They are not rules but qualities, traits of character of legal institutions, general ideas that are not capable of any implementation by themselves, but that have exercised a decisive influence on the formation of practical legal rules.

The two great legal cultures of the world, the common law culture and the civil law culture, refer to two deep conceptions of justice-the manner of reaching a just decision. These conceptions can properly be called "deep" because they are linked to a history, representations, legal traditions, political philosophy, and a sociology of legal professions. All these elements form an environment inhabited by narratives, symbols, and meanings implicitly shared by a community, a milieu that, even though it is omnipresent in legal practices, is never expressed as such. Each legal culture is, thus, like an original fold which is the matrix of the mentalities and professional reflexes of a country's lawyers.

Now, the process of globalization is so powerful that, by now, all lawyers have the feeling of living a sort of generalized legal Page 938 acculturation due to the competition legal systems engage in. The reason is that, whatever their national and identity force, the two great legal cultures are certainly not monolithic and closed; they mutually define and influence themselves; they assert themselves in confrontation and comparison much more than in withdrawal and the illusory protection of legal "sovereignism." Culture is not an intangible and frozen dogma, it is not a denial of renewal; it is a dynamic, interactive, and living reality. Since it is peculiar to a legal culture to evolve, and to evolve by opening to other legal traditions, the problem of the receptivity of each legal culture to the others is inevitably raised.

There are, in my view, two forms of interrelationship between the two great legal cultures, common law and civil law, that constitute two corresponding models of legal globalization: convergence and hybridization. These models influence the solutions each legal system will give to the same type of problems it has to resolve. They represent two different sensibilities, two modes of encounter and exchange between the universe of common law and that of Romanist law.

I Convergence

The process of convergence between two legal systems is undoubtedly stimulated by the fact that these systems have the same types of problems to confront everywhere. Law is not an exact science; it is rather a form of realization of practical reason. Lawyers are pragmatic people. They are first and foremost interested in resolving concrete problems by means of the institutional tools they have at their disposal, or through other means that are capable of realizing the expected aims. But since globalization puts us increasingly in a position of grappling with the same types of practical problems, what would be simpler and more natural than to give legal responses that look alike? The model of convergence seems simpler in the eyes of lawyers because it involves only the institutional level of...

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