Civil V. Common Law: The Emperor Has No Clothes

Abstract

This Article debunks myths about the common/civil law distinction and offers a more sober, evidence-based account. Few rules and institutions are systematically different between common and civil law, and the few that are do not follow a pattern. Neither these differences nor anything else supports claims that common and civil law operate differently, or that their lawyers think differently. Contrary accounts cherry-pick jurisdictions, eras, areas, utterances, etc., if they provide any “evidence” at all. On closer examination, the very concept of common/civil law remains mysterious beyond its genealogical core. In the end, common and civil law are merely like language families: shared descent manifests in intra-family similarities of concepts, categories, and institutions that greatly facilitate communication but do not represent cultural or other substantive traits.

Keywords: common law, civil law, comparative law, legal origins, comparative method, macro comparison, legal families, classification of legal systems, legal tradition