Introduction
In the modern world, there are several legal systems with quite different priorities and values. Common law nations, such as the United States, generally adopt the British legal system and rely primarily on case law, which is based on precedents set by past court rulings (U.S. Department of Justice n.d.). Systems of civil law, including the French legal system, are characterized by extensive codified legislation (U.S. Department of Justice n.d.). Unlike the civil law legal system, the standard law system is superior due to flexibility, legal certainty, individualized justice, and legal experimentation.
Concrete Examples
Flexibility and Adaptability
Overview
First, common law is frequently cited for its superior adaptability to changing circumstances and for providing the ideal balance between continuity and change. Unlike civil law, which has comprehensive laws, common law permits the gradual development of legal concepts through the interpretation of statutes and judicial precedent (Anderlini et al. 2020, 21). One of the distinguishing characteristics of the common law in the United States is the principle of precedent, which holds that cases are decided in accordance with prior decisions (Hennes and Dang 2021, 77).
Judges frequently rely on prior rulings when deciding, and advocates often cite prior cases in the hope that the judge or jury will draw comparisons between them and the current case (Hennes and Dang 2021, 77). Regardless of its actual power, precedent is now seen as a crucial tool for judicial restraint and efficiency (Hennes and Dang 2021, 77). Courts can consider cases more rapidly because of precedents, which serve as a reference for judges in areas outside their competence (Hennes and Dang 2021, 77). Lastly, precedents are meant to prevent judges’ personal preferences from influencing decisions and guarantee that cases with similar facts receive similar conclusions.
Brown v. Board of Education
One example of the flexibility of common law is Brown v. Board of Education (1954). The Supreme Court of the United States considered five distinct cases regarding segregation in public schools, which together came to be known as Brown v. Board of Education (United States Courts n.d.). These cases were managed by Thurgood Marshall and the NAACP Legal Defense and Education Fund (United States Courts n.d.). Eventually, the case helped define the Equal Protection Clause of the Fourteenth Amendment, which ultimately led to the end of school segregation.
Before the Amendment was changed, there were significant debates in the case. Initially, a panel of three judges in the United States District Court that reviewed the cases decided in favor of the school boards, albeit acknowledging some of the plaintiffs’ arguments (United States Courts n.d.). After that, the plaintiffs filed an appeal with the Supreme Court. Marshall presented the case to the Court directly (United States Courts n.d.).
The most frequent legal objection he made during the appeal process was that the “equal protection clause” of the U.S. Constitution’s Fourteenth Amendment was violated by the segregated school systems for Blacks and Whites because they were fundamentally unfair (United States Courts n.d.). Additionally, he contended that segregated educational systems should not be legally permitted since they tend to create an environment where black students feel inferior to white students (United States Courts n.d.). Thus, because of its adaptability, the common law system can successfully address societal and technical changes.
Case Law and Legal Certainty
Overview
Another reason why common law is superior to the civil law system is connected to case law and legal certainty. Civil law systems frequently produce a thorough and intricate legal structure because they rely primarily on codified law (Krishnakumar 2022, 614). Because judges are required to apply the law exactly as written, this may lead to rigidity even though clarity may be gained (Krishnakumar 2022, 614). Meanwhile, standard law systems use statutory interpretation and case law to establish legal concepts (Krishnakumar 2022, 614).
The English legal precedent of the sixteenth and seventeenth centuries seems to have established the practice of using the common law to fill in the gaps left by statutes (Krishnakumar 2022, 614). This practice stated that “if any doubt be conceived on the words or meaning of an Act of Parliament, it is good to… construe it according to the reason of the common law” (Krishnakumar 2022, 614). Although this can lead to some ambiguity, it also enables a more profound understanding of legal concepts and the adjustment of strategies to specific situations.
Katz v. United States
One specific example connected to the Fourth Amendment can help illustrate the role of common law certainty. Through the evolution of legal precedent, the Fourth Amendment’s protection against unjustified searches and seizures has been extended in the United States to include cutting-edge technologies such as thermal imaging and mobile phone tracking. In the case Katz v. United States, based on an inclination that Katz was using a public phone booth to communicate gambling data for clientele in other states, federal investigators installed a listening device outside the building (Oyez n.d.).
Katz was found guilty on eight counts of illegally transmitting gambling details from Los Angeles to Boston and Miami, based on tapes of the end of the discussions (Oyez n.d.). The man appealed his conviction, claiming that the recordings were inadmissible as evidence against him (Oyez n.d.). The Court held that Katz’s interactions qualified for protection under the Fourth Amendment and that they did not require a physical entry into his space (Oyez n.d.). In such a case, listening to Katz’s phone conversations was deemed a violation of his rights.
Judicial Discretion and Individualized Justice
Overview
Moving forward, unlike the civil law system, which limits judges’ discretion, judges can exercise their interpretation and take specific circumstances into account when issuing decisions under the standard law system. The Constitution gives judges the authority to make decisions by allowing them to establish factual findings, create legal recourse for violations, interpret the text of statutes, rules, and the Constitution, and award injunction relief (Supreme Court n.d.). Judges may also determine whether members of the administrative arm of government have misused their powers of discretion (Supreme Court n.d.). Ordinary law courts have the authority to take mitigating considerations into account and modify sentences to suit the particular facts of each case in criminal sentencing (Manotar et al. 2023, 4). Therefore, such adaptability is invaluable in situations when a rigid interpretation of the law could have unfair results.
Virginia Example
As an example, Virginia’s legislation can be observed. Virginia’s sentencing procedures have shown that, depending on the crime and the type of judgment, judges give varying weight to different criteria. Virginia court decision-making can be viewed as a two-step process. The judge’s first task is to determine if the offender should serve a sentence of more than six months in prison (Virginia Criminal Sentencing Commission 2022, 7).
Depending on the judge’s initial ruling, there are two possible formats for the second stage of the judicial decision-making process (Virginia Criminal Sentencing Commission 2022, 7). The second phase is to determine whether the offender is entitled to probation without an active jail term or to a reduced prison sentence (six months or less) if the court determines that the offender should not receive a term exceeding six months (Virginia Criminal Sentencing Commission 2022, 7). This tailored strategy ensures a more equitable and just legal system.
Legal Innovation and Experimentation
Overview
Lastly, the decentralized legal system encourages legal experimentation, unlike civil law systems, which tend to be more conservative and less prone to legal innovation. An industry-led initiative would be beneficial in the familiar legal setting, because the courts can also adjust to changing conditions. The over-the-counter (OTC) derivatives market is one instance of a new product that has governance and liability rules established by an industry-led initiative (Zhang 2020, 153). Derivative contracts had different terms and were negotiated separately when the OTC market was just getting started (Zhang 2020, 153).
Legal ambiguity and significant transaction costs resulted from this fragmented industry (Zhang 2020, 153). To standardize contractual terms, a few leading financial organizations that accounted for a significant share of the OTC market agreed to establish the International Swap and Derivatives Association (Zhang 2020, 153). Overall, such a harmonization effort benefits all stakeholders and creates a powerful network effect that ultimately draws in the other participants.
Vermont Example
As can be seen, within a common law nation, various jurisdictions may adopt distinctive strategies for handling legal matters, fostering a range of viewpoints and possible resolutions. This may result in the development of stronger legal structures (Hoadley et al. 2021, 1). In another example, one can see that in the United States, several states have adopted diverse legal strategies to address issues such as same-sex marriage, marijuana legalization, and consumer protection, offering opportunities to gain insight from diverse policy experiments.
Unlike some other states, such as Florida, Vermont is one of the few states in the United States where adult-use cannabis is legal (Hudak and Stenglein 2020, 17). However, there is no commercial cannabis industry, and cannabis sales are forbidden there (Hudak and Stenglein 2020, 17). Nonetheless, a 2018 law enacted by the state assembly of Vermont authorized the home production of a certain number of cannabis plants. It allowed the distribution of cannabis to others without requiring payment in kind (Hudak and Stenglein 2020, 17). In such cases, legal experimentation enhances the adaptability of policies and laws.
Counterarguments
Efficiency and Simplicity
At the same time, it is necessary to recognize other perspectives. Since codified laws are complete, there is a popular argument in favor of civil law systems that they offer more efficiency and simplicity (Roosevelt 2019, 17). Nonetheless, the standard law system can also be made more effective by applying legal concepts and precedents.
For example, subordinate courts may adopt previous precedents under the theory of stare decisis, which minimizes the need for in-depth legal analysis and promotes consistency in results (Kozel 2020, 1974). Despite objections to its validity and effectiveness, the doctrine of stare decisis remains a distinctive feature of American law (Kozel 2020, 1974). As a result, stare decisis can promote stability even when the Court deviates from precedent in specific instances.
When stare decisis is used correctly, it can serve as a tool for maintaining consistency, safeguarding expectations, and conceptually separating the judge’s identity from the text of the law (Supreme Court 2023, 2). A court must choose the format and organization of a legal rule before it may issue or modify it. Because of the common law doctrine of stare decisis, judges establish and carry out laws by introducing and interpreting precedents.
Legal Harmonization
Additionally, since civil law systems have uniform standards that other nations can readily adopt, they are sometimes cited as being more favorable to legal harmonization. This may be somewhat accurate; however, the standard legal system has its own harmonization mechanisms, such as the persuasive authority of precedent. Regardless of the merits of the case that is currently before the judge, a precedent has force when it compels the judge in a particular case to render the same decision as in the prior case (Lewis 2021, 874). When a judge is required to follow a precedent in a given case, absent compelling circumstances to the contrary, the precedent is widespread (Lewis 2021, 874).
Furthermore, the diversity of common law jurisdictions might encourage legal experimentation and creativity, ultimately yielding better solutions to societal problems (Bonadio et al. 2022, 1174). Social problems can be resolved by fostering a learning orientation toward diversity and drawing on their experiences as representatives of specific identity groups (Ely and Thomas 2020). In such a case, the civil law system lacks proper harmonization and adaptability.
Legal Certainty and Predictability
Finally, since civil law systems rely on codified laws, they are frequently commended for offering a high degree of legal certainty and predictability. Such systems view the presence of codified law as a necessary and adequate condition for achieving legal clarity and predictability in the operations of courts, which are bound by legislatively enacted regulations (Egea-de Haro 2023, 2). Most people assume that legal regulations govern all possible factual scenarios.
The legal certainty indices, too, have come under fire for failing to account for the system’s capacity to resolve legal disputes (Egea-de Haro 2023, 2). The standard law system, however, also provides certainty through the stare decisis principle, which mandates that courts uphold prior decisions (Ridi 2020, 45). As mentioned, the principle of precedent, which guarantees uniformity and predictability in the application of the law, frequently balances the standard law system’s greater latitude to depart from precedent.
Conclusion
Overall, the standard law system outperforms the civil law system by offering greater flexibility, greater legal certainty, personalized justice, and scope for legal experimentation. Common law is often described as offering the best balance between continuity and change and as being more flexible in changing situations. Legal certainty and case law are two further reasons why common law is better than civil law. Furthermore, the standard law system allows judges to exercise their discretion and consider specific facts when rendering decisions. Finally, the decentralized standard law system, in which legal principles are formed by case law, fosters legal creativity and experimentation.
References
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