Thursday 16 September 2021

English Common Law Versus Roman (Napoleonic) Civil Law; What Are The Differences?

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Representation of a sitting of the Roman Senate. From a 19th-century fresco
Representation of a sitting of the Roman Senate. From a 19th-century fresco

(QCOSTARICA BLOG) Most readers will understand that Costa Rica has a Roman (Napoleonic) Civil Law System, as its Judicial System, which is the System of laws used primarily throughout the countries of Latin America and continental Western Europe.

In Latin America, this Legal System is rooted in the legal systems of its Colonial Masters of Spain and in the case of Brazil, of Portugal.

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The United States (except Louisiana), Canada (except Quebec), England, and existing and former British Commonwealth Countries, utilize the English Common Law System as their Judicial System, rooted in their Colonial Master of England.

Having Law Degrees from both British Columbia and Costa Rica, under the English Common Law and Roman Civil Law Systems respectively and having practiced law for a considerable time in both jurisdictions, I believe that I am uniquely qualified to comment from both an academic and a practical perspective, on the differences between the two Legal Systems.

Essentially, the single most important difference in the day-to-day practice of the law, is that the Civil Law System is significantly more formal in its requirements than the Common Law System, with much more documentation required to be generated in order to achieve similar legal results. In many cases, the form of a document becomes more important than the substance of the document in the Civil Law System. This emphasis on form, over substance in the Civil Law System, complicates the delivery of legal services and generally contributes significantly to longer periods of time being required to complete any given legal task.

Common Law jurisdictions have adopted a much more functional and more common sense approach to performing such legal functions. A good example of what I am speaking about would be the simple granting of a Power of Attorney. In a Common Law jurisdiction, this can be accomplished by signing a self-drafted, one page letter granting a Power of Attorney to a specified party, with the letter signed by the party granting and witnessed.

In a Civil Law jurisdiction, the granting of the Power of Attorney must be by a Public Deed redacted in a Notary Public’s Public Deed Book, signed by the party granting the Power of Attorney before the Notary, and depending on the scope of the Power of Attorney granted, possibly registering the Power of Attorney document in the National Registry as well, for the power of Attorney to have legal effect.

However, the most striking difference between the two different Legal Systems, is the fact that in the Civil Law System, legal case precedents carry little, or no weight in the Court deciding future cases possessing like facts and law.

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In the Common Law System, legal Case Digests are compiled, which Trial Lawyers refer to at great length in preparing a case, in order to present cases of a like nature for the Court’s consideration and persuasion in deciding the case at Bar.

In the Common Law System, a Judge is bound to follow the case decisions of a Higher Court that have a direct relationship of fact and law to the case at Bar. Precedent cases of a Court of equal standing can be held to be persuasive in deciding a case at Bar. These considerations together, create a thread of commonality between legal cases of a like nature that can evolve through future court decisions, to reflect the changing norms of a Society over a period of time. This jurisprudence, or judge made law, produces a “corralling effect” on the presiding judge in reaching a decision on the case before them and plays as much a part in deciding the case as any Statute, in the Common Law System.

In Civil Law, no such similar binding consideration of precedent court cases, or Jurisprudence exists. The law is codified as to subject matters and judges are free to interpret the facts with respect to any particular code article that is applicable, as they wish. The only Court decisions made in Costa Rica that are binding on the Courts below, are those of the Supreme, or Constitutional Court (Sala IV).

As a result, in my opinion, going to Court in Costa Rica, or other Civil Law jurisdictions, is much more of a “craps shoot”, as no predetermination of the Court’s possible ruling in any given case is able to be researched by the lawyers involved with any certainty, there being no body of binding jurisprudence to consult. In my further opinion, this, rather open and unrestricted consideration of any case presented to the Court, also allows for considerations by the Court to come to bear, other can those of a strictly judicial nature, in reaching any decision on a matter.

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The “corralling effect” on the judge in deciding the case, as was previously explained, does not exist in Civil Law. I don’t believe that further comment need be made by me in this regard.

Obviously, any civilized society requires a system of laws and regulations under which it is to be governed and to provide a mechanism by which disputes between its citizenry are settled.

The question remains, under which of the foregoing Judicial System examples are you more likely to find Justice in the settlement of such disputes?

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Richard Philpshttp://costaricacanadalaw.com/
Attorney Richard (Rick) Philps is a Canadian citizen, naturalized as a citizen of Costa Rica. Rick practiced law in Victoria, B.C., Canada as a member of the Law Society of British Columbia, for fourteen years, prior to moving to Costa Rica in 1998. Rick then earned his Bachelor of Laws and Licensing Degrees (Civil Law), with Honours, and a Post-Graduate Degree in Notary and Registry Law, from the Metropolitana Castro Carazo and Escuela Libre de Derecho Universities, in San Jose. Rick is a member of the Costa Rica College of Lawyers, and practices law in Costa Rica in the areas of real estate and development, corporate, commercial, contract, immigration, and banking. To contact Attorney Rick Philps about hiring him as your Costa Rican Attorney; Email: rick@costaricacanadalaw.com, Website: www.costaricacanadalaw.com

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