Examining a Comparative Law Myth: Two Hundred Years of Riparian Misconception
47 Pages Posted: 9 May 2009
Date Written: May 8, 2009
This article is a first step in an effort to critically examine - and to debunk - some of the myths that persist about the degree to which the common and civil law systems differ. Specifically, the article questions the validity of recent scholarly commentary suggesting that the primary differences between the systems can be found in their substantive legal rules or in their respective "spirits." A relatively narrow issue of riparian access perfectly highlights the problem. Nearly all of the high courts in the United States that have examined this particular riparian issue have chosen to adopt either the so-called "common law rule" or the so-called "civil law rule" of riparian access.
In fact, these courts are perpetuating a false choice. The "civil law rule" adopted by at least six of our states' high courts is not actually a rule of the civil law at all. It is, instead, the relatively modern and spontaneous generation of one European jurisdiction in response to peculiar policy choices. The rule at civil law is exactly the same as that at common law. But the United States Supreme Court made an error of interpretation years ago that pulled a distorted rule into American jurisprudence and falsely attributed it to civilian sources. That error has been perpetuated by courts around the country ever since.
This article seeks to correct that two-hundred year-old mistake as an important step towards preserving judicial integrity and discovering and benefiting from the true differences between the common and civil law systems.
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