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Tata Institute of Social Science, Deonar, Mumbai
Assistant Professor: Asha Sundaram
Critical analysis on legal research in civil law countries and common law
countries
Submitted by:
!ame: Sheethal
School of "aw, #ights and Constitutional $overnance
#oll !o: %&'(""M&'&
Date: ')''%&'(
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Critical analysis on legal research in civil law countries and
common law countries.
Most countries today follow one of two ma*or legal traditions ie common
law or civil law The common law tradition emerged in +ngland during the
Middle Ages and was alied within -ritish colonies across continents,
whereas The civil law tradition develoed in continental +uroe at the
same time and was alied in the colonies of +uroean imerial owers
such as Sain and Portugal
Glimpse of common law and civil law system
Common law is a eculiarly +nglish develoment -efore the !orman
con.uest, di/erent rules and customs alied in di/erent regions of the
country -ut after '&00 monarchs began to unite both the country and its
laws using the 1ing2s court 3ustices created a common law by drawing on
customs across the country and rulings by monarchs These rules
develoed organically and were rarely written down -y contrast,
+uroean rulers drew on #oman law, and in articular a comilation of
rules issued by the emeror 3ustinian in the 0th century that was
rediscovered in ''th4century Italy 5ith the +nlightenment of the ')th
century, rulers in various continental countries sought to roduce
comrehensive legal codes
Civil "aw is the most widesread tye of legal system in the world, alied
in various forms in aro6imately '7& countries It is also referred to as
+uroean continental law The civil law system is derived mainly from the
#oman Corus 3uris Civilus, 8-ody of Civil "aw9, a collection of laws and
legal interretations comiled under the +ast #oman 8-yantine9 +meror
3ustinian I between AD 7%) and 707 The ma*or feature of civil law
systems is that the laws are organied into systematic written codes In
civil law the sources recognied as authoritative are rincially legislation
4 esecially codi;cations in constitutions or statutes enacted by
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governments 4 and secondarily, custom The civil law systems in some
countries are based on more than one code'
According to the CIA 5orld
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the doctrine of stare decisis in common law *urisdictions, a rior decision
by a court is binding on any courts deciding future cases 5hile it is true
that the doctrine of stare decisis comels common law lawyers to treat
cases as law, the lac1 of stare decisis in civil law *urisdictions does notdiminish the relevance of cases in the legal research rocess Moreover,
statutory law and legislation are growing in imortance in common law
*urisdictions The reality is that many lawyers in civil law *urisdictions do
begin their research in cases and many lawyers in common law
*urisdictions begin their research in legislation Attorneys in both
*urisdictions ultimately must consult all sources of law to do thorough
research
In civil law *urisdictions that re*ect stare decisis, cases constitute only
ersuasive authority Some civil law *udges cite and interret Civil Code
articles, legislation, other cases, treatises, regulations and administrative
decisions Many lawyers in civil law *urisdictions do word searches on fact
atterns to ;nd the Civil Code articles and legislation, etc, that have been
alied to those facts by other *udges In the ast, there was a
resuosition that only lawyers in common law *urisdictions would search
using words reresenting fact atterns
At this *uncture, it is necessary to have some broad, but ertinent,
observations about the nature and scoe of legal research in the common
law and civil law systems
In the common law system, "egislature enacts substantive law +6ecutive
wing of a State, drawing authoriation from a substantive law,sulements the substantive law in the form of rules, regulations,
statutory orders, noti;cations and byelaws 5hile courts, as and when
called uon, interret the ?law2 and gives ;nality to it through their *udicial
ronouncements Courts, articularly higher ones, however, do not only
?aly2 law to the ?facts2 and ?issues2 brought and agitated before them
but also, through their *udicial ronouncements, ?ma1e2 law% They are,
%
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generally, bestowed with wide *udicial discretion They are emowered to
determine ?legality2 as well as ad*udicate ?;nality2 of ?law2 or ?legal
rovision2 The lower courts are bound by ?recedent2 In the common law
system, therefore, the basic assumtion is that if there is a *udicialdecision in the ast having facts and legal issues similar to those in the
case currently before the court, the outcome of the ast case should
control the outcome of the resent case Therefore, in the common law
system "egislature, +6ecutive as well as 3udiciary do constitute ?source2 of
law A legal researcher, with a view to understanding ?law2 on a articular
toic or sub*ect, therefore has to ?locate2, ?areciate2 and analye at
Acts of Parliament, subsidiary legislative instruments, if any, and *udicial
ronouncements @e has to focus his attention on the rimary source
materials, li1e the Constitution and Statutes 8along with statutory
instruments9, and leading *udicial ronouncements 8the recedents9
-y contrast, in the civil law system, Acts of Parliament, sulemented by
aroriate #egulations and Directives, if any, do constitute ?rimary2
sources of ?law2 Courts are re.uired only to ?aly2 them In no way, they
are e6ected to ?ma1e2 law through their *udicial ronouncements @ence,
the law of recedent, unli1e in common law *urisdictions, is irrelevant
!evertheless, a *udicial statement of a higher court may have an
insirational or ersuasive value in terms of its reasoning In civil law
system, a legal researcher, with a view understanding law on a toic,
therefore, has to merely concentrate on the rimary sources of law
@owever, there is hardly any material di/erences in the nature and scoe
of legal research in these two legal systems4 the common law and the civil
law system In both the systems, broad strategy and utility of legal
research is ali1e They only di/er in their emhasis on the material
re.uiredused for carrying out legal research A legal researcher from the
common law *urisdiction relies heavily uon, and gives imortance to,
aroriate statutory materials 8the Constitution, statutes and other
statutory instruments9 and case reorts 8including case comments and
case digests9 for ascertaining areciating law on her toic or area of
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research 5hereas a legal researcher from a civil law system focuses and
rominently relies on the statutory materials for ascertaining and
areciating law >nder both the legal systems, a researcher has to resort
to identical methods of data collection and of analysis when he isinterested in highlighting ?social dimension of law2 or ?ga2 between the
legal idealism and social reality or assessing ?imact of law2 on the social
behavioral attern
Thus it is very much relevant to understand that it is not the system or
mechanism which matters, but the e/ectiveness of the system The larger
goal on which this whole legal research should rely on should be its
aroach towards the marginalied and vulnerable grous of the society
Bibliography and References
' -en*amin Cardoo, The !ature of 3udicial Process , 'B Eale >
Press 8'B9% 3ohn -ar1er, #esearch Myths About Common "aw F Civil "aw
3urisdictions, Gct '), %&'& at ,
htt:solutionswolters1luwercomblog%&'&'&research4myths4
about4common4law4civil4law4*urisdictions( S-, 5hat Is the Di/erence -etween Common and Civil "awH, The
+conomist, 3uly '0, %&'( at ,
htt:wwweconomistcomblogseconomist4
e6lains%&'(&economist4e6lains4'& The Common "aw and Civil "aw Traditions 8School of "aw, >niv of
California, -er1ely %&'&9 hereinafter The #obbin CollectionJ,
htt:wwwlawber1eleyedulibraryrobbinsCommon"awCivil"awTraditionshtml
7 The 5orld