2 Common Law System and Civil Law System

The families' systematic comparison (the course's capstone table):PointCommon lawCivil lawHistorical originMedieval England (royal courts, writs)Roman law (Justinian → Bologna → the codes)Primary sourceCase law (precedent); legislation supplementaryLegislation (the code); case law persuasiveStatute's modeSpecific, detailed statute responding to casesGeneral, abstract code-article as starting pointThe methodInductive: from cases to principle; the casebookDeductive: from article to judgment; the code- and-commentaryJudge's roleLaw-maker (the declaratory theory's polite fiction)Law-applier (the judge as "the mouth of the law" — Montesquieu's caricature; the modern reality: judge-made gaps-filling)Doctrine's roleWeak (the practitioners' textbooks)Strong (the professors' doctrine shaping law for centuries)ProcedureAdversarial; orality; jury's legacyInquisitorial tradition; the dossier; lay judgesJudiciaryPractitioner-judge; appointment from the bar (UK/US patterns)Career judiciary (the ENM/Bordeaux ladder; Germany's two-exam merit corps)Legal educationThe case method (Langdell); the JD; clinical trainingThe lecture-exam tradition; the first degree in law (undergraduate); the doctorate's scholarly apexThe professionDivided (barrister/solicitor — UK) or fused (US)The avocat/anwalt + the notaire/notar (the authentic deed's officer)Rights' protectionRights from judicial decisions (Dicey's orthodoxy); the unwritten constitution's flexibilityRights from the code/constitution; the constitutional-court review (the German invention)StyleArgumentative, fact-driven, precedent-anxiousSystematic, conceptual, hierarchy-anxiousThe heart's question"What did the previous cases decide?""What does the code mean?"ExamplesUK, USA (the mixed-Louisiana caveat), India, commonwealthFrance, Germany, the Latin world, Japan's base, and — in method — the Nepali Ain traditionThe convergences and the survivors (the closing analysis):1. Convergence everywhere: statutes' flood in common-law states; precedent's quiet authority in…