Court Systems and Law

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Most sociological discussions of law begin with Weber's definition in which a specific staff is charged with avenging norm violation or ensuring compliance (Economy and Society 1968, p. 34). Weber's goal was to distinguish law from morality and convention, by which a whole community may act to impose sanctions. He also developed his now classic typology of formal legal systems (those limited only to legal as opposed to those legal systems he called "substantive," based on religious, economic, or moral criteria) and rational (those legal systems based on rules as opposed to those involving use of oracles, oaths, and ordeals, for example). Although he was careful to call these distinctions "ideal-types," that caution has not stopped persons from offering specific examples that are actually mixed types, as in speaking of "khadi justice" (a term, unfortunately, used by Weber himself) as a prime example of substantively irrational decision making in which a Moslem khadi sits under a palm tree and dispenses justice according to his personal feelings or inspiration. As Rosen (1989, ch. 1) shows, in actual cases he observed, the khadi does not exclude any evidence but relies on witnesses, notaries, documents, and any relevant evidence as well as testimony from interested parties. His goal, as in Islamic law generally, is to "put people back in the position of being able to negotiate their own permissible relationships . . ." (p. 17; see Nader 1969; Starr 1992). He follows a careful procedure, although the conduct of persons in his court may appear to Westerners to be more informal and more disorderly than that allowed in a typical Western court.

While anthropological studies of tribal societies have been shown to exhibit the whole panoply of Weberian categories (cf. Gluckman 1954; Bohannan 1957, 1967; Howell 1954; Kuper and Kuper 1965), even the classic moot (eg. Gibbs 1963; Gulliver 1969), while classifiable as substantively irrational since it subjects disputes to discussion by a whole village of involved or even merely curious onlookers, still follows definite procedures and is guided by a mediator or authorized persons. See also Stone (1979) on miners' meetings in the gold rush Yukon; MacLachland (1974) on the tribunal of the Acordada in eighteenth-century Mexico; and the People's Courts in postrevolutionary Russia (Feifer 1964). The goal of the moot, as Gibbs notes, is not solely legal but is at least what he calls therapeutic since the end sought is restoration of relationships and harmony. It turns out that goal is quite consonant with what we find in formally rational systems in the Western world. In any case, bases of all legal systems include: first, a reasonable certainty and predictability on which persons can depend, which, in practice, means no retroactive laws (as Fuller 1969 notes); second, fairness, which comes down to treating like cases alike; and third, justice should not only be done but be seen to be done, which means that there are no secret decisions, and decisions are in accord with generally agreed values, assuming they exist. These similarities are more important than the many variations in detail that can be found in different legal systems (cf. Pospisil 1958).

In what follows, we shall focus on the two main systems of law, common law and Civil law, which are found widely in much of the world. In so doing, we can give only passing reference to such systems as Islamic, Jewish, or Tibetan law, or to the many subtle differences found in tribal law. To further complicate matters, many national legal systems are blends of other systems, especially as the result of conquest (as is the case in Japan, which took over a German code but then had common-law features of public law grafted onto it after its occupation by the United States in the 1940s). In modern society, legal systems have become identified with the nation-state so that Canadian law differs from American law, as does Scotch from French law. Nevertheless, many can be said to share one of the two traditions we are considering. Although the two systems have been converging in many respects, each is distinctive in outlook as well as in court organization and the kinds of legal careers likely to be found.

The Civil law is by far the older, going back at least to the Corpus Juris Civilis of the Emperor Justinian in the sixth century C. E., though some scholars would trace it back to the 12 Tables of Rome, said to have been put together in 450 B. C. E. This system is found throughout Western and now Eastern Europe, most of Central as well as South America, and in many other areas in Africa as well as Asia, plus the state of Louisiana (for an example see Williams vs. Employers Liability Assurance Corporation, Limited, 296 F.2d 569 (1961) U.S), the Canadian province of Quebec (Magnet 1980), and Scotland. The common law system is often dated from the Norman conquest of England in the eleventh century, when the Normans sought to impose a single system on the country, hence the name "common law." Common law is now found not only in Great Britain but in those countries that made up the British Empire, such as Canada, Australia, New Zealand, Ireland, India, as well as the United States, and is influential in many countries of Africa and Asia. During colonialism, the common law countries preserved legal ties with England through Privy Council appeal, a process largely abolished or greatly attenuated today. Comparable appeals or ties to a single place were largely unknown to the civil law system. Whether the European Community will establish some form of tie remains to be seen.


When persons with a grievance decide to take action, they may: (1) act separately from each other as in direct attacks, seizure of property, etc. (see Black 1993, chs. 2, 5); (2) confront the other party; or (3) enlist the participation of a third party to help settle the dispute. Courts are preeminently concerned with this third option, what we call "the triadic dilemma." Although courts deal with matters other than dispute settlement, such as law making (when judges make a new policy in decision making) as well, of course, as social control, they all employ a variant of a triad. Two persons or collectivities who have been unable to settle their differences or who have accused others of public harm have in all societies sought the help or guidance of a third party. The hope of each party is that the third party will side with them. Although each may think it fairest if the third party is neutral, in practice each hopes for a decision in his or her favor. As Simmel (1902; Wolff 1950; Caplow 1968) shows, parties of three are inherently unstable, being liable to break down when two of the three form a coalition to defeat the third, a phenomenon well-known to parents of small children.

The third party may be simply a go-between who offers his services unasked in the interest of preserving or restoring good relations. Or he or she may, as Shapiro (1986, ch. 1) notes, take a more active role as a mediator, though only with the consent of the two disputing parties. While mediators may seek to preserve their neutrality, in fact he may, as in the case of real estate agents, make proposals of their own and may shade the decision by how they handle the facts each shares with them. Less consent from the disputants is involved when an arbitrator appears who may be persons agreed to by the parties or persons imposed by the state or the terms of a labor contract, for example. Arbitrators are under no obligation of coming up with a solution agreeable to both, but they will usually try for such a solution. The most coercive situation of all is the appearance of a judge, either as required by law or by decision of a governmental body. Here the parties may have no say at all either in his appointment or on the body of rules he applies, which may be the terms of a contract or the rules of law.

The dilemma in all these triadic situations is, as noted, preventing the breakdown into two against one. Whatever the outcome, those who lose are likely to feel the other two have somehow combined against them or that they were defeated from the start. In common law systems, the myth of the neutral judge is much celebrated, although since judges are political figures who owe their position to their political activities and may even have been rewarded with the judgeship for their services, it is not surprising the loser feels he never had a chance. In Civil law systems, there is no pretence of neutrality. The judge is a member of the civil service and hence a part of government itself. With the prosecutor in criminal cases being also a member of the administration, the dice are loaded as two against one. On the other hand, this does not mean the civil law system is less fair or just.

Indeed, because of the many protections offered to the accused in common law systems, one author commented that if he were guilty, he would rather be tried in the United States but if innocent, then he would prefer the Civil law system because, for reasons we shall explain, judges have far less power than they do in the United States, and the system is far less adversarial. The Civil law judge assumes a more neutral role in searching for "truth," rather than winners or losers. Attempts are made in both systems to produce an outcome that each will feel is "just." Disputants may be asked to submit voluntarily, and if they do, they will be felt to have offered at least a modicum of consent to the outcome. Alternatively, attempts are made to avoid an all-or-none outcome. For example, in auto accident cases, one party may be felt to be 70 percent at fault and the other 30 percent, with a division of property in that proportion. In criminal situations, as in the United States, a plea bargain may enable the accused to walk away with a much lesser penalty than he or she might otherwise have suffered.

Actually, although plea bargaining is thought of as peculiar to criminal proceeding, negotiation is equally common in what are called "civil situations" (involving actions between two or more persons) where, as in criminal proceedings, an estimated 90 percent of cases are settled without trial. Such resort to negotiation places a special strain on the triadic model, particularly where the judge may himself participate, at least to the point of interviewing the accused in case of crime, or the parties in civil law, to provide assurance, at least in his own mind, that the accused or the plaintiff is aware of what is happening and has voluntarily entered into the "deal." (Klein 1976). What one needs to understand is that the ubiquity of negotiation in American law is an organizational model. Lawyers, both defending and prosecuting, as well as lawyers in other courtroom situations become "repeat players" (Galanter 1974), who deal routinely with one another as well as with judges, clerks, and others in the court. Gradually, their work becomes routinized, with all focusing on getting things moving and coming out with cases settled. The goal of the system, then, becomes one of efficiently moving cases through, with participants seeing themselves, however unwittingly, as agents of the system. As that takes place, the triad can be seen as disappearing altogether and being replaced by a work group consisting of three or more players who have an interest in the outcome of the game (see Eisenstein and Jacob 1977; Jacob 1983).

We proceed to a detailed examination of the two systems, beginning with the common law system as most familiar to American readers. But that very familiarity is likely to blind us to the assumptions of the system that contrast so sharply with the equally hidden assumptions of the civil law system.


Although most persons are taken with the image of justice as a "blind lady" who acts on the basis of the facts and the inherent justice of the situation, as Jacob (1996) points out, courts in common law systems are ridden with policy assumptions, no more so in the United States than in other places. While courts go about their business of settling disputes and ensuring orderly procedures, their procedures send symbolic messages (see Nelken 1997; Sarat and Kearns 1988). This is especially the case for appellate courts where, in contrast to European courts, judges are fond of wrapping up their decisions in opinions that are often more widely cited and influential than the decision itself. While conservatives are usually at pains to insist that judges confine themselves to being "strict constructionists," their opinions resonate with what the legal scholar Dworkin (1977) calls "principles." In the classic case of Riggs vs Palmer (115 N.Y. 506, 22 N.E. 188, 190, 1889), a presumptive heir on becoming alarmed at the possibility that his grandfather might change his will proceeded to eliminate that possibility by murdering him. The grandson was properly tried, but defended his right to his inheritance. The court refused to award the inheritance to him, leading a dissenting judge in the case to ask for the court's reasoning for this decision. After all, wrote the dissenter, the will was in order, was it not? There were the required witnesses, and there was no question that it was the intent of the testator that the young man should receive the bulk of the estate. With barely a reference to those issues, the majority awarded the bulk of the estate to the deceased's daughters, who, under the will, were to receive only token amounts. In sum, the majority proceeded to rewrite the will in direct contravention of the deceased's clearly expressed wishes. Although the majority hunted mightily for a source for their decision, turning variously to Aristotle, the Bible, an ancient case from Bologna, the Napoleonic Code, Roman law and, finally, to a rather desperate assumption that no specific law was really needed, anyhow. In the end they asserted that there is a "fundamental maxim" found in all "civilized countries," namely:

No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. (Riggs vs. Palmer 1889)

But the dissenter asked: What is the legal source of this "maxim?" It could not be found in any case previously decided, nor in any statute (such is no longer the case in most jurisdictions). Although he agreed that the principle had intuitive appeal and might be found in most religious and moral systems, the law, at least Western secular law, is not simply a set of religious or moral principles. In the United States, the Constitution specifically erects a wall between church and state. Since that case, the principle, once announced by the court, has been cited and is indeed now a part of U. S. (and most other common law countries) law. But we must not go too far and declare that common law is simply a set of principles. Rather, the law is informed by policy assumptions, often hidden, but influential nonetheless. Although civil law is equally political, attempts are much stronger to hide the policy assumptions with an insistence that only a legislature can make law. All judges are supposed to do is apply it with as little innovation or interpretation as possible, let alone enunciating "principles." The overall issue of how much politics and governmental policy is reflected in judicial decision making clearly affects the triadic system's functioning to produce or not produce a sense of justice done and seen to be done. It is this feature that has been seized upon by Marxists and proponents of socialist law who see both common law and civil law as simply disguised systems whereby bourgeois ideologies are foisted on a powerless proletariat by capitalist exploiters, whether governmental or private. Their answer to the triadic dilemma is that there never can be neutral third parties, with the result that the only reality is endless strife between parties with temporary truces as victors seek to pick up the spoils.

In addition to taking policy positions, courts in common law systems can have massive effects on society by judicial review of legislative acts, a phenomenon severely limited in civil law systems as we shall note. Courts also provide a major alternate route to persons who lack funds or who have been stymied by attempts to influence legislation. Persons can convert a private grievance into a public cause (Savat and Scheingold 1998) by, for example, deciding that severe burns from hot coffee served at McDonald's requires court action to impose punitive damages as a warning to all companies serving the public that consumer safety must be a part of the design even in private firms. So too, persons suffering from lung cancer who have been unable to get protective legislation against cigarette companies have turned to the courts, not simply for financial awards, but for vindication of what they feel are violations of their rights, as citizens, to life. When added up, the damage awards in such suits as well as those even in routine automobile accidents, violations of privacy, and tort and contractual disputes have never been totaled but constitute a huge shift in resources comparable to that involved in taxation. Nor have we touched on the part that lawyers' fees play in such cases.

Finally, unlike judges in civil law jurisdictions who are part of the civil service from the start (judges in France, for example, even go to special schools), judges especially in the United States, often come to their judgeships in mid-life, after serving in political positions, business or other areas of life. Jacob points out that:

. . . between 1963 and 1992, between 58 and 73 percent of federal appeals judges had a record of party activism before their appointments; among federal district judges, between 49 and 61 percent had such a background. (1996, p.19)

Yet such a background should not lead to cynicism that judges are necessarily biased or probig business or pro-party. Their background in ordinary society helps ensure a commitment to the importance of the rule of law, of procedural fairness, and of individual rights as a legitimate expectation of ordinary citizens.

A special characteristic of common law court is often the source of surprise and some envy on the part of those schooled in civil law systems. American courts are often perceived as a jumble, with multiple urban, country, and state systems, so that what is actionable in Montana may not be actionable in Idaho and that if one is not happy with treatments in a state court, one can, with some issues, move to a federal court. Such "forum shopping" seems a travesty to those accustomed to single systems. Yet the United States has more a single system than have many European countries. In those countries, there are often two sets of courts—ordinary courts that try the vast majority of civil cases, and a second set of administrative courts for those who have quarrels with the government or administration. In the United States most regular courts can handle any case that comes before them (though there are many specializations), and ultimately, the U. S. Supreme Court sits at the top as the final arbiter of law (considering constitutional questions especially important and above all). Nor, it should be added, are courts entirely separate systems. They are dependent for salary and other resources on what Congress and legislatures will provide, and they do not appoint their own numbers. The U. S. Supreme Court is indeed supreme on law, but it is in no sense the apex of a bureaucracy that can appoint and discipline members of lower courts. Further, it is basically passive, waiting for cases to be brought to it when there is a "case or controversy," thus severely limiting its ability to act autonomously as a conscience of the nation. Often citizens gnash their teeth as the U. S. Supreme Court refuses to hear a case or decides it on the narrow issue that happens to have been presented to it. In that sense, the entire legal system is the property of the lawyers and what they choose to present to the courts, a situation vastly different from what we find in civil law systems.

The impact of lawyers in common law systems is greater than in civil law and indeed in any other system known to the world. Two major factors help account for lawyer dominance. One is the dependence on case law. Although legislation and statutes are basic sources of law, the necessity for interpretation and application to particular cases places enormous power in the hands of courts. If all legal systems require a strong sense of certainty, then that certainty is provided in common law systems by the majestic procession of cases, whether simply confirming one another, adding details, or overruling contradictory cases. To argue a case in an American court is to recite cases, and if there are enough of them, lawyers and judges feel the outcome can be considered settled. On the other hand, civil law systems depend on codes as enacted by revolutionary regimes, which codes are felt to be the ultimate source of law, supplemented by legislation that is still felt to be a kind of supplement to the code. In a sense, the code is thought to settle the matter of certainty with little need for lawyers to interpret it. (This is less true in Germany where lawyers play a larger role.)

But in addition, especially in America, the model of the triad is felt to be basic. A court case consists of two adversaries who argue before a (one hopes, neutral and just) judge. The emphasis is on the adversarial process itself, a situation that produces not necessarily "truth" but rather a victory for one side. Lawyers play the key role, a matter that often leaves the outcome to the skill of the lawyers as much as to other features of the case. The judge is felt, if not to be neutral, at least to be passive, waiting for lawyers to present objections or evidence as they wish. If a lawyer chooses not to present a piece of evidence or simply sloppily forgets to do so, the judge cannot intervene to instruct the lawyer on what he has left out. In civil law systems, the judge, while a mere civil servant, has more power to direct the course of the trial, assuming what is often spoken of as an "inquisitorial style." Given the major role that lawyers play in common law systems, it is important to give attention to how that role is played out. Since data are more complete, we shall use U.S. sources. However, comparable rates of increase for most categories are found in Canada and Great Britain (see Galanter 1992). This is not meant to deny the differences, especially cultural variations, in those countries (see Atiyah and Summers 1987).


In spite of their widespread influence and frequently very high income, lawyers in America are not a happy lot. They are not esteemed (a Gallup Poll found that 46 percent of respondents rated lawyers "low" or "very low" in honesty and ethical standards, just barely above used-car salesmen). A survey by the California Bar Association in 1992 reported that 70 percent of those polled said they would choose another career if they could. Even more—75 percent—confessed that they would not want their children to become lawyers. Other studies report that lawyer job satisfaction is dropping, along with much higher levels of alcoholism, drug abuse, and symptoms of depression than those found in the general population.

In spite of such indices of self-destruction, the number of lawyers in the United States has been rising, especially in the 1990s. From 374,000 in 1975, the number of lawyers will soon top one million as 31,000+ new lawyers are admitted to the bar every year. The field is proving attractive to minorities and women. From a low of only about 3 percent in 1971, female lawyers now make up over one-quarter of the total of practicing lawyers, and nearly one-half of students in entering law school classes. Female lawyers, as a group, are younger, with only 7 percent being over 50 compared to 30 percent of their male colleagues.

The location of practice has, however, not changed significantly. Private practice is dominant, even increasing, so that by 1991, 73 percent of lawyers were in private practice, with only 8.8 percent found in private industry, and 8.2 percent in government. But private practice has been undergoing profound changes. Solo practitioners have become scarcer as lawyers move increasingly to firms. The increase is mainly in larger firms (those with at least eleven lawyers). In 1980, the very large firms (one hundred or more lawyers) accounted for only 7 percent of firm employment. By 1991, that percent jumped to twenty-three. The large firms are the more common locus for men, with women being more likely to be found in government, legal aid, and in public defender's offices. Some of these differences are declining as more women enter the profession and attain experience. On the other hand, more women, proportionally, are leaving the profession.

It is the large firms that attract more and more of the new lawyers who seek distinguished and lucrative careers. The largest—often called "mega firms"—range from the Washington, D. C., firm of Williams & Connolly with 127 lawyers (sixty-one partners) producing revenues of $78 million, to true giants, such as the New York firm of Skadden, Arps, Slate, Meagher & Flom, with over 1,000 lawyers (236 partners) earning well over half-a-billion dollars in gross revenue. Some firms are even larger. They are not, of course, all under one roof but scattered in different cities as well as in foreign countries. Not only are these the places where the largest salaries are found, but they are also the platforms from which government and other influential careers are launched, including leading positions on major committees and boards, as well as ambassadorships and presidencies. Twenty-five of the forty-one U. S. presidents have been lawyers, as well as half of U. S. senators and nearly half of all members of Congress. Lawyers are widely found in governorships and state legislatures as well. If these are not the most esteemed members of society, they certainly are among the most powerful and perhaps the most feared.

Although most persons in common law systems are aware of the presence of lawyers in those settings, it is not the image most have when they think of lawyers, and it is not the setting in which they see them in television drama. Instead, it is the lawyer, often solo or in a small firm, arguing for his or her client in a courtroom before a jury. The television image runs counter to the image of real lawyers in the news, leading to charges that the United States is a "litigious" society, in which large awards are given for burns suffered from spills of hot coffee, and there are suits against arrest for breast-feeding in public or for recovery of expenses on being stood up for a date. Though most such cases are thrown out immediately by disgusted judges or settled out of court for modest sums, critics person who may never hear of those outcomes continue to demand that we follow the lead of the nonlitigious Japanese, for example, who make do with very few lawyers. Actually, the number of lawyers in Japan is deliberately kept low by the governing elite to preserve a hierarchical social order. Nor are the Japanese devoid of a taste for litigation by any means (Haley 1978, 1991, ch. 5).

Nor has the United States had a "litigation explosion" nearly as great as some have claimed. There was only a moderate increase at the state level in the 1990s. It is true that there has been a large increase in the number of federal cases, not of the trivial sort noted above but rather of big businesses suing each other. The news of most of those ends up on the back pages of the Wall Street Journal. Other federal cases deal with asbestos and similar injuries as well as other suits by government (Galanter 1983; Galanter and Palay 1991). The reason it seems that the U.S. is experiencing a litigation explosion is that there is an increasing prominence of what have been called "mega" cases, in which large masses of lawyers and experts pursue a single case, sometimes for years on end. Although most involve business, a few involve highly prominent individuals who have the resources and will to fight, intimidate, and otherwise bring up issues, subsidiary issues, and more of what Damaska (1978, p. 240) has called "companion litigation" where, along with the main case, separate suits are filed on discovery, on legal fees, on standing, and on other issues, which lengthen proceedings and often do little more than harass the other side or both sides into exhaustion. Such cases take the form of a "prolonged clinch and. . . settlement" (Galanter 1983, p. 163) while rarely ever ending up in court. Meanwhile, such cases contribute to the image of the United States as a "litigious" society.

Yet, even granting all such cases, very few lawyers are involved in doing such things. Only a small minority of all dealings of U. S. lawyers ever result in a contested court action. Most legal practice takes place in offices for the benefit of business firms, and only a small minority deal with individual clients at all. Even in those cases, lawyers spend much of their time persuading suit-eager clients not to go to court but to work out a settlement. Lawyers generally limit themselves to cases they think they can win. Often filing a case is symbolic of seriousness of intent, forcing a response from the other party; but the cases are settled, sometimes on the very eve of the court date or even as the trial, if there is one, is in process.

What all this amounts to is that the legal profession in the United States is "split." Most lawyers quietly carry on the journeymen work of settling disputes and assisting persons to compromise so that they can carry on with their lives. A very, very few carry out the courtroom battles of the O. J. Simpson type that dominate the front pages of the nation's newspapers. In such cases, lawyers are not seen as settling disputes but they are seen by many people as "getting people off," leading to cynicism or to despising lawyers, even when or even because they win. Many cases take place outside the large law firm, but the reputation of lawyers created by the sensational cases affects the public image of all lawyers, wherever located.

One special feature of the split deserves attention; namely, income. Solo and small-firm lawyers carry out much of the work of helping persons set up partnerships, get a divorce or settlement from an insurance company, draw up wills, and deal with persons who are in minor trouble with the law. On the other hand, work in a large law office is carried out by specialists who do the complex work of big business. Large businesses often make use of their own "in-house counsel" for the routine work of contracts, labor-management negotiation, and other repetitive legal activities. The company turns to outside law firms for the unusual, once-only activity, such as mergers and acquisitions, floating new securities, takeovers, and bankruptcies. Such activities call for the highest degree of expertise and knowledge, far beyond what a solo lawyer might be called upon to have. A major study of Chicago lawyers (Heinz and Laumann 1982) asked them to rank legal specialties in prestige. At the top were securities, tax, antitrust, patents, banking, and public utilities—the activities in which large law firms are involved. At the bottom were criminal defense and prosecution, personal injury, consumer debt, landlord-tenant, divorce, and family—the concerns of the solo and small-firm lawyer. The income differentials between the two clusters are equally impressive. A major study reported salaries from large firms in Indianapolis and New York to average around $300,000 per partner for the year, but many make much more. A New York law firm reported that each of its 121 lawyers (sixty-one equity partners) earned over $1 million. Many others were not far behind. Lawyers in solo and small firms are not poor but make a good deal less. A 1995 survey reported that those lawyers earn somewhere between $75,000 and $100,000 a year, assuming they work a full two-thousand billable hours, which some do not. Associates (that is, nonpartners) start out, according to a 1996 study, from lows of $40,000 to as high as $70,000, but then rise with each year in the larger firms to $150,000 and up, plus bonuses. Stories of such incomes add little to offset the low esteem in which lawyers are held, especially since most persons who deal with lawyers find the lawyer wants money "up front" or on a retainer basis, unless a contingency arrangement is made, and often even then. (Note: The preceding section draws from the author's paper, Gross 1998.)


A final issue that troubles many observers both in common law and civil law countries is

Table 1
judges, lawyers, and civil litigation in selected countries
 judgeslawyerscivil cases
countrydatenumber per milliondatenumber per milliondatenumber per million
denmark    197041.04
new zealand197626.819751081.3197853.32
united states198094.919802348.7197544.0
w. germany1973213.41973417.2197723.35

whether the United States, in particular, is "overlawyered." Some even see this question as helping account for the so-called litigiousness of American law. Whatever the numbers, an increasing number of civil cases are settled either during or after trial. Lawyers play their role in filing cases, but most of their work is done outside the court, which, of course, means lots of work for lawyers. Further, although cases may never reach court, as Mnookin and Kornhauser (1979) put it, much negotiation takes place in the "shadow of law." That is, lawyers, well or poorly acquainted with actual court cases, call attention to what is "likely" to happen if they go to court, not to speak of the delay and expense. So law, or at least imagined law, plays a dominant role even when never specifically called into play (Ewick and Silbey 1998).

A useful table (table 1), if read with caution, is provided after careful research by Galanter (1983, p. 53).

Although we do not provide the sources, the results differ in dependability and the care with which they have been calculated. Still, the contrasts, however crude, are revealing. As to civil cases, the United States is seen to stand toward the middle, exceeded by Australia, New Zealand, and Canada, with many others being much lower. The United States is at the lower end in judges, being exceeded by W. Germany, Belgium, Italy, and Sweden. But when we come to lawyers, the United States far exceeds other countries, though Australia, New Zealand, Canada, and Spain are also richly supplied. As we note later in the discussion of civil law countries, many others not called "lawyers" do what the United States would call "law." Such persons include notaries, government officials of many kinds, law clerks in private firms, and, in Japan, the very high proportion of those who take the exam but are not allowed to practice (they do just about everything lawyers in the United States do except represent clients in court).

In making such international or intercultural comparisons, one should bear in mind differences in conceptions of what is worth disputing over and indeed what a dispute is in the first place. The studies by Felstiner, Abel, and Sarat (1980–81) suggest that a great many, perhaps most, injurious experiences are never perceived as such, but rather thought of as simply part of the risks of living. Some proportion of these are seen as violations of some right, but even many of those are simply "lumped," that is, borne with equanimity or tolerated as not worth pursuing because of time or costs. A small proportion are, however, charged to a specific causal agent, and if a person or collectivity, then become what are called "grievances." Some small proportion of those in turn, if voiced, turn into claims that, if rejected, become "disputes." In turn, most (90 percent approximately) disputes brought to lawyers are settled with varying degrees of satisfaction, lawyers often functioning to persuade the aggrieved that they should accept a settlement and move along with their lives. Whether persons are willing to pursue a grievance depends on technology and the ability to find a causal agent, as well as the existence of such legal devices as no-fault automobile insurance or divorce, which have the effect of diverting cases out of the legal system (see Kritzer, Bogart, and Vidmar 1991). Some countries, such as many on the European continent, have special labor tribunals and other systems that also divert cases out of what would, in the United States, be a legal case. The United States has fewer such alternative forums than is the case in the civil law world.

Jacob (1996, p. 52) speculates that the United States is, perhaps, more a nation of strangers, leading to a greater willingness to pursue disputes than is the case in countries with a stronger sense of community. In general, it may be said that the closer persons are, whether as family, neighbors or co-religionists, the less likely are they to sue one another. On the other hand, that does not mean there are fewer conflicts in such groups. Rather, there are internal mechanisms for settling them within such groups.

A final point about common law systems that contrasts with civil law systems is the widespread availability of appeal, particularly within the judicial systems. Although much of this is perfunctory and may involve little more than an attempt to satisfy clients with the appeals court routinely affirming the lower court, still appeal is possible, much more so than in civil law countries. Appellate judges often lack experience and are not required to have experience as trial judges. In some cases, judges have discretion on whether to hear an appeal, leading to selection of cases that may be controversial or present novel points of law. The extreme is presented by the U. S. Supreme Court which, in the 1990s, has elected to consider around 100 out of some 5,000 cases presented to it, usually reserving to hear constitutional cases and conflicts between the states or foreign governments. It is difficult to assess the impact of appeals on the civil or criminal process. Unlike trial judges, appeals judges do not merely decide cases but also give reasons. Such reasons are often examined by elite lawyers and are now routinely discussed in the "legal" columns of popular magazines. It is not clear that the reasons affect policy in any obvious way. But the language of the court enters common discourse and affects thinking. School boards, church councils, Boy Scout boards, and even teachers' decisions on classroom discipline become legalistic, with persons being given notice of charges, given chances to answer, and allowed to bring witnesses in their defense. In the United States, as in common law countries, the law seems to be everywhere (Galanter 1983), even if not formally invoked.


In drawing comparisons between the common law and civil law traditions, it is important not to dismiss variations as due simply to "historical experience" or to even vaguer influence of "culture." History and culture are, of course, operative at all times, but we seek not simply a description but a sociological explanation. We must begin with the recognition of what Zweigert and Kotz (1987) call "functionalism." By that they mean that all legal systems deal with generally similar problems as, say, medical systems do. Whether the society employs witchcraft, herbs, appeals to the gods, leeches, hot baths, or Western-style x-rays and surgery, they all deal with illnesses of the body. So, too, legal systems concern themselves with trouble presented by the fact that humans live in society and must deal with each other. In Chiangmai, Thailand, for example, it is not surprising to find that three main classes of law suits appear: crimes as offenses against public order or the state, which are dealt with seriously by the courts; private wrongs, such as those arising from marital disputes, which are settled by negotiation; and those conflicts involving contracts and property rights, which are settled by careful examination of written and especially certified documents (Engel 1978). The details are indeed "cultural," involving what Watson (1977) speaks of as "legal transplants," by which a society adopts some procedure borrowed from another society because it is accessible, written in a language the elite can read (such as Latin for Roman law), or more commonly simply the law of a conquering power as with England or India. One wastes one's time if one looks for rational reasons or tries to account for such transplants on grounds of "efficiency," although often people come to believe in the superior efficiency of the system of law they happen to use.

On the other hand, a close examination of legal procedures can have much to teach about the assumptions taken for granted in the culture (Ross 1993; Nelken 1997). In a report on a personal experience in Indonesia, Lev (1972) tells of an accident in a hotel in which a toilet tank, affixed high up on a wall, fell, nearly hitting a friend. To Lev's amazement, the hotel presented him and his friend with a bill for repairs. Lev refused, turning for help to a local judge, who was also a friend, for support for what Lev felt were his legal rights. The judge, while agreeing that those were indeed his legal rights, proposed that Lev make a token payment as evidence of "good will." With reluctance, Lev did so since compromise or peace was, the judge reminded him, after all, more important than vindication of rights. An even more obvious example is presented in a Mexican case in which the supreme court absolved a court for liability for the theft of money and jewels left in the care of the court pending settlement of the case. After all, said the court, Mexico is a poor country that cannot afford safe deposit boxes or secure storage places, but they do the best they can. The court then quotes what it clearly sees as a universal "principle of law," "impossibilium nulla obligatio est," which the court translates simply as "No one is obligated to do the impossible" (quoted in Merryman, Clark, and Haley 1994, p. 684). These considerations are spoken of by Glendon (1987) as the "hortatory" function of law in civil law systems. She contrasts that with a view that American and British law usually involve a command backed up by punishment. Yet, whatever the system, laws, whether self-consciously doing so (as in civil law systems) or inadvertently (as in common law systems), always teach lessons as persons observe their operations.

Understanding of the civil law systems requires recognition that they come to us in two widely separated parts. The first is what is owed (and that is a great deal) to Roman law as codified in the sixth century under the Emperor Justinian as the Corpus Juris Civilis. This magnificent collection includes the law of persons, family, inheritance, property, contracts, and remedies, all of which the juriconsults (the legal experts) of the day saw as forming a unified body of law and which has been largely seen that way ever since. The influence was not simply on the Civil law system as such but has had a strong effect on civil law (narrowly conceived) in common law countries as well. Basic principles the Roman jurists developed echo through the ages up to the present.

With the invasions of Rome that followed, much of this law fell into disuse or was united with the local laws of German tribes. However, canon law, as developed by the Catholic Church for its own uses, came to be widely adopted and grafted onto classic Roman law, influencing family law and civil procedure as well as much else, though not public law for the most part. Then, with the Renaissance, classic Justinian law was revived, especially in Bologna, where scholars gathered from all over Europe to study it, in Latin of course, and then spread it, where it came to be known as the jus commune. However, as it spread, it was inevitably influenced by local laws and customs that were often simply added to it in the interests of utility for solutions of local problems. A third development was commercial law, also from Italy, at about the time of Crusades, when there was much transport of goods and persons. The guilds and towns that developed this law were, for the most part, only tangentially influenced by Roman law since the focus was on rules merchants developed for their own use. Such rules spread even more widely than the jus commune up to the present day, where much of it can be found in admiralty law and related fields. It is quite clear, for example, that when two ships approach one another on the high seas there had better be a clear understanding as whether they both keep to the right or to the left, and that understanding must be clear whatever the differences in language, culture, or tradition. It is the nearest thing law offers to a truly international and intercultural system.

But there is more to modern civil law than a revival and Renaissance enrichment. The system was almost totally transformed by the ideas that gave birth to the political revolutions that began in the seventeenth century and are far from over at the present day. The revolutions were, of course, the American and French Revolutions, the military and ideological events associated with the unification of Italy and Germany, the coming new nations as the Turkish Empire disintegrated, the movements for freedom from Spanish and Portuguese domination in the Americas, as well as the chaos that followed the great wars of the nineteenth and twentieth centuries. While the word "chaos" may be useful in a strictly descriptive sense, it is better to speak of these changes in the term employed by Schumpeter (1976) as winds of "creative destruction," for they did not simply destroy but created what we speak of as the modern world. What they destroyed was basically feudalism and the concept of status fixed at birth as well as the conception of a divinely ordained, and hence unchangeable, social universe. In Weber's classic phrase, we witnessed a "disenchantment of the world" which left humans, in the words of the existentialists, fated to create their own world and take responsibility for it. This meant that law was secular, torn loose from any religious basis, but focused instead on what came to be called "positive law," that is law enacted by legislatures and parliaments. The transformation was not merely procedural but involved substantive changes in the assumptions of legal rights. These were the now-familiar rights stated in the American and French revolutionary documents—rights to liberty and property, the opportunity to change one's status through one's own efforts, the right to own land in one's own person rather than merely, as in feudalism, as a serf or dependant of a feudal lord. Along with these changes came fundamental changes in loyalty and allegiance. Instead of fealty and subordination to lord or guild master, allegiance came to be narrowed to a single, overarching focus on the nation-state. The power of the church was similarly destroyed or greatly attenuated, as in England, and with that decline went the jurisdiction of ecclesiastical courts as well, though some of the traditions of canon law as, for example, in civil procedure (where courts make use of written records of proceedings and much less, than in common law systems, of oral testimony in trials), were retained.

Although the state and the law created by legislators came to make up the substance of law, it should be noted that in time it became evident that some controls were necessary on the state itself. In the United States, this control is institutionalized in the doctrine of the separation of powers, especially the ability of the courts to rule on the constitutionality of legislative enactments as well as the authority and legality of administrative acts and regulations. The civil law countries also elaborated a separation of powers but a very different one. The concern there was the enormous power judges had during the feudal period to act, usually in support of the landed classes and the aristocracy. As Stone (1986) points out, the French parlements (panels of judges) had almost limitless power—they could arrest seditious persons, ban public gatherings, evaluate regulations of all kinds, supervise guilds and universities, and act as censors of public morals. Somewhat similar powers were enjoyed by the audiencia as representatives of royal power by the Spanish conquerors of Latin America. Such power led to their becoming wealthy and powerful, which led, in the case of France, ironically, to their own undoing. Although their vast powers might (and did occasionally) act as a break on royal powers, instead in a final act of defiance of the royal power, they threatened to resign on the very eve of the French Revolution. The Constituent Assembly voted to place them on indefinite vacation and then abolished them altogether. In a sense, their very arrogance and posturing led to a recognition that they would be a permanent obstacle to the new freedoms the revolutionaries wished to establish. A result was that there was a serious attempt to reduce the judge forever to a mechanical figure who would simply carry out the expressed will of the parliament in the name of the people. As such, the judge would have no inherent powers at all but would become a clerk or servant. He was not to presume even to interpret the will of the parliament. But how was that to be achieved?

The answer was to create a code that could answer all legal questions for the judge. In terms of the triadic model, two adversaries would argue before a neutral third who would simply delve into the code, find the answer, and impose the solution on them. In practice, as we can see from our vantage point, matters could never be so simple. As time went on, the concept of a legislative or code monopoly of law gave way to systems whereby the judge could declare legislative or administrative acts unconstitutional, but the process involved much hedging by being careful, at first, at least to locate the places in which such review could take place outside the ordinary court systems in special constitutional courts (often not even called courts) as in France, Germany, Italy, and Spain, and in most Latin American countries, though in the latter, more influenced by U. S. practice, they were less reluctant to call them courts. There was little of this problem in England, which changed more slowly, retained more feudal practices, and, most important, did not go through a bloody revolution to achieve the doctrine of parliamentary superiority (though the British did cut off at least one head and became, for a time, a republic).

Although one often speaks of common law systems as made up of cumulative, judge-dominated case systems, and Civil law countries as code systems, Merryman (1985, ch. v) reminds us that the contrast is overdrawn and misleading. All American law students are forced to master the Uniform Commercial Code, and many states routinely refer to their laws as "codes." So too, there are code nations, such as Hungary, that actually did not enact a code until it became a socialist state, although it was a Civil law country before then. Instead, what is distinctive of codes in civil law systems is that they are unified documents that seek to express the spirit, ideology, and goals of the new state the revolution has created. Thus, the French code, the Code Napolèon of 1984, sought to express the ideology of the French Revolution—liberty, equality, and fraternity—in every clause. It was intended to be a blueprint for a utopia. Thus, every attempt was made to abolish or at least hide any earlier statutes or laws that were inconsistent with it and try to make a fresh start. Law would now begin with the Code Napolèon.

Further, in lines with the French Declaration Rights of Man and of the Citizen, the Code Napolèon must be one that the average Frenchman could read and interpret for himself without "humiliating" himself by going through clerks, officials, and other overlords to get to the courts. As such, lawyers would be unnecessary. For this to be possible, the code must be complete—without gaps. Everything would be covered. Although manifestly impossible, the Germans did make a valiant attempt to do so in the Prussian Landrecht of 1794, which laid out some 17,000 detailed "fact situations" that were felt to cover everything that could come up, thus eliminating any need for lawyers or interpreters. It failed, but it is a striking illustration of how persuasive was the ideology of the French Revolution, which created the belief that it could be done. In the Code Napolèon and others following it, the goal of completeness is achieved but only by broad statements that practically invite judicial interpretation. (For example, the Italian Civil Code of 1942 tells judges to follow the intention of the legislature, and if it is not entirely clear, then to reason by "analogy.")

Germany, under Bismarck, did enact a code in the full sense but in what can only be seen as a very Germanic manner. The Code Napolèon began with certain assumptions about human nature (equality, liberty, etc.) and tried to produce a humanistic code that would, presumably, have universal application. Under the influence of Savigny, a major German historian, that approach was felt to be inappropriate. Instead, he insisted (in the face of heated controversy) that the German code (and he did agree that a code was necessary), since it was intended to represent the spirit of German society, must be based on the German volkgeist (folk spirit). But it was first necessary to decide what that was. To that end, and with help of German romantic writers, he felt it necessary to plumb German history for the basic elements of the volkgeist and build the code up from those elements. That code would then be not only historically oriented but also scientific (in being built up by logical and empirical deduction from basic principles) and professional. This code would not be revolutionary—quite the contrary—but would be a true code in being built up, paragraph by paragraph, from principles that could stand on their own as a legal document and manifesto of the new Germany. One difference from the French code was that with its complexity and its dependence on the many historical details that went into the volkgeist, it would require lawyers to explain and interpret it. Nevertheless, it was careful, like the French, to make sure judges would have little power, perhaps even less than was the case in France. For answers, the German litigant, with the help of his lawyers, was to go to the code and, above all, not to seek answers as American and common law lawyers do. That would just return power to the judges again.

Codes were also enacted in the many countries in Europe and elsewhere that followed the French or German systems (Japan tried doing both, with a dollop of the U. S. model thrown in as well (Haley 1991), though the German model eventually triumphed). When a code was shown to have gaps, scholars (in keeping with the tradition of drawing on the juriconsults in Roman law) would develop a new principle, as in an example provided by Watson (1981), wherein a doctrine similar to the British concept of estoppel was developed to cover cases where a person had acted contrary to his usual practice but others had come to rely on this new behavior. But when a new interpretation (rather than a gap) was the problem, the court would draw on similar cases, not as precedents but to use as a basis for a new principle that would be held to govern the case at hand. In this manner, the spirit of a code based on permanent principles would be maintained.

The German approach to codification had a lasting effect in emphasizing the dominant role of the scholar in civil law systems generally. Although the scholars were everywhere evident, in the case of Germany, Savigny and his followers felt that in creating what they considered to be a code based on "scientific" principles they were creating a body of law that was indeed scientific in a sense not unlike that of the physical sciences. It was built up from empirical elements, could be found to be true or false, subject, as any science is, to modification as new facts came in. It came to be called "legal science," which remains the dominant school of thought even up to the present, however much criticized. It had its own concepts, such as a "juridical act," and was systematic in structure and therefore an infinite distance from such American schools of thought as "legal realism." Above all, the Pandectists (as they came to be known, from the Latin word for Justinian's Digest—pandectae) felt their great strength was their purity in being divorced from politics and everyday life.

Actually, as Merryman (1985, pp. 65) points out, the Pandectists were far from being value free. The doctrine was shot through and through with the basic assumptions of nineteenth-century European liberalism—private property, liberty of contract and, above all, individualism. They were most limited in their concept of law as a matter of transactions between private individuals, an assumption that was to collapse in the growth of giant collectivities, such as corporations and labor federations and, most important, the increased role of the state in managing economic and social life. Although civil law systems recognize the distinction between private and public law, even dividing up law in just that way, they hardly anticipated, nor could they, the merging of the two systems as states began to manage private life, and as private relations became imbued with public consequences as with pollution, the spilling over of populations across borders and, still later, the emergence of new national groups or even nations and new communities such as the European Community (cf. Gessner, Hoeland, and Varga 1996).

It is clear from the above that the Uniform Commercial Code in the United States, though called a code, has nothing in common with the civil law codes. It is not animated by any underlying utopian principles, it makes no claim to answer all questions, and it makes no attempt to supersede any laws. Instead, it is a collection that seeks to bring some order into the many elements of commercial law. States are free to ignore it (though few do so), and new laws can be tacked onto it at any time. It remains judge-made law, with judges being free to draw on it or not for precedent as they please.

Legal science did leave one imprint on American law, though a minor one. Case law, as taught in American law schools, was thought of as a kind of science, with cases as the raw materials. Conclusions from case accumulations might generate principles with wide applications. An attempt to state these principles took the form of what were called restatements, which are, from time to time, quoted by judges as they go about making law.


As we have noted, the position of judges in civil law countries is vastly different from that in common law countries, especially the United States. Merryman (1985) points out that judges are not only respected in the United States but that some, such as Marshall, Holmes, Brandeis, and Cardozo, are culture heroes. The opinions of U. S. Supreme Court judges are studied carefully, as noted earlier, for hints of policy changes and guidance on how to proceed in deciding on difficult issues such as euthanasia, product safety, and whether schools may require bilingualism of its teachers. There seems no limit to areas into which judges may wander. Nor do judges hesitate in passing judgment on any law (if appropriate, of course) or even on the private life of the President of the United States. As has often been noted, American law is judge-made law built up from cases that lawyers have presented for decision (and, note, the judge must limit himself to such presentations, since he is very limited in his power to bring up issues on his own initiative). The supreme doctrine is that of stare decisis, whereby judges are required to follow decided cases; new cases must be compared to those already decided. If similar facts, then a similar decision. If the facts are significantly different, then there is a different decision. As noted by Clark (Merryman 1991, p. 898), this need to do such case research, which falls on the shoulders of lawyers, helps explain (though only partly) the fact that the United States has more lawyers per capita than any other country for which we have reliable statistics.

Nothing could be further from that image among civil law judges. To begin with, the status of "judge" is usually much lower than is the case for common law judges. A civil law judge is a government employee, a civil servant, appointed to his position, whose career will follow that of other civil servants in rising by seniority and merit. His prestige is not necessarily low but reflects the prestige of civil servants at his level. He likely identifies with other civil servants, though more closely with judges, resulting in a certain insularity from the general public and its concerns. He is particularly isolated from any creative role in decision making. In line with the continuing suspicion of the dangers of judicial power going back to the parlements of pre-Revolutionary France (as well as similar excesses in other countries), he must not interpret the law or review legislation. As noted, he is a kind of expert in the application of the law to particular cases. More recently, constitutional review has begun to make its appearance in Austria, Spain, Italy, and Germany, but this goal is achieved not through giving judges in the ordinary courts new powers but rather through the creation of special constitutional review bodies that often are not called "courts" but that in time perform court functions.

This is not to say that appeal from judicial decisions was or is impossible. Quite the contrary, appeal is common but still dominated by attempts, at least in form, to restrict the power of judges. Thus, in France, appeal for what is claimed to be a misinterpretation of a law may be made to the Court (originally called a tribunal) of Cassation which could quash an incorrect interpretation by a lower court. It would indicate the correct interpretation but then remand it to the lower court to modify its ruling. The courts could ignore this decision but in practice would rarely do so. The process was time-consuming, and, in the case of Germany, the higher court would not only quash the lower decision but go ahead and revise the decision itself. It was also possible to appeal administrative rulings, though not, as in the American case, by declaring a law unconstitutional or lacking in validity because of vagueness or for being over-broad. Instead, another body outside the court system was created. These might be what would amount to administrative courts, with a council of state at the top, a process seen not only in France but also in Italy and Belgium, as well as in Germany and Austria, where they were actually called administrative courts. Such attempts to counter state power were not necessary in a country such as England, where courts have the power of quo warranto (questioning the legality of an act by a public official) and mandamus (the ability to order a public official to perform as required by law). As noted, similar powers are possessed by ordinary American courts, though it is difficult for courts to use them.

The attempts to control the power and initiative of judges was tied up with another concern of civil law traditions; namely, the search for certainty. As long as judges had interpretive powers, the law was a tool in their hands that could be twisted to suit particular interests. Instead, the hope was that if the code plus legislation was clear and complete the judge would not need to exercise any initiative. Such a concern with certainty is not foreign to common law, either—persons need to know what the law says for law to be a guide to behavior. However, in civil law there is little that resembles the concept of equity at law. Equity—the power of a judge to limit the harshness of a law or to adapt the law to fit particular situations—gives him great powers. In England, equity reached its greatest development in the creation of chancery courts as a way of appealing to the king against what was felt to be an unjust rule of law. Civil law countries, though occasionally, and grudgingly, conceding a place for equity, preferred to confine it to the legislature, which might grant equitable powers to a court for a particular case or might make what amounts to an equitable grant of power to a court by telling it that, when the law is unclear, the court is to see to it that the parties acted "in good faith." But the suspicion of judicial discretion remains and is not always a simple prejudice. Thus, the Nazi regime in Germany was able to make use of such discretion by using the courts to provide a patina of legality to its racist decrees, a process more difficult in Mussolini's Italy, where discretion was more restricted.

One other important difference is that the English and American courts include in equitable powers that of contempt. A litigant or witness who refuses to follow court processes or who refuses to carry out the will of the court may be subject to the contempt power, which can include fines and imprisonment. This degree of power is quite unknown in civil law countries where it is felt to give the judge what amounts to discretion to impose criminal penalties in civil cases. The civil law judge must, in comparable cases, limit himself to drawing on the person's property which may, of course, be felt by the person, as no less painful than a period in prison might be for others.


In the United States, lawyers, as well as the general public, think of the legal profession in the singular, though specialties are recognized. This is especially the case, as noted earlier, since such a high proportion are in private practice (well over 70 percent) as compared, for example, to only 33 percent in Germany, 42 percent in Colombia and only 23 percent in Chile. The United States also has a very low proportion of the profession acting as judges (only 3 percent) compared to 17 percent in Germany, 23 percent in Chile, and 42 percent in Colombia. (Clark 1982, figures are for the 1960s and 1970s). In Germany, 70 percent of positions in general administration are filled by persons trained in law.

Apart from differences in distribution, the path to a legal career is very dissimilar in different cultures. In the United States, aspiring lawyers go to a graduate law school, then sit for the bar exam (often after an intensive cram course that prepares them for that exam), then after passing the bar (in most states, the success-rate percentage is over 60 percent, and higher for first-time exam takers) he or she enters directly into practice in a firm, in a small-firm partnership, or as a solo. There they learn as they go along. Persons may, and many do, shift around from service in a government department to a public prosecutor office to the corporate law office of a private firm, or elsewhere. They may run for political office and may end up being rewarded for service by appointment or election as judge of a lower-level court and, for a few, high judicial office in a circuit or even a supreme court.

In England, the distinction between solicitor and barrister, though less rigid than in the past, continues. The would-be barrister takes his pupilage under a barrister in one of the Inns of Court where he may, under good conditions, receive an apprenticeship and possible appointment after passing an examination. Only barristers may argue cases in the higher courts. Solicitors maintain direct contact with clients, collect fees, and assist barristers in their work. Solicitors are now being allowed to argue cases in some lower courts. Some barristers may develop honored reputations, a few being chosen as judges as the culmination of a distinguished career. There is almost no shifting to other careers on the part of barristers and very little among solicitors. In that respect, they resemble the lawyers in civil law countries.

In civil law countries, a young lawyer must make an early choice as to whether he wishes to be a judge, a government lawyer, a regular lawyer in private practice, a public prosecutor, or a notary. If he finds later he made a mistake, exit to another legal career is difficult, and does his experience in one does not translate into credits in another. He spends his whole career in the one field, a process that often leads to rivalry and conflict between the fields. An attempt to deal with this problem is made in Germany (and some other countries) in the referendarzeit, where a lawyer spends two or so years of practical training as a government lawyer, a judge, and in private practice. If lawyers choose to be judgse, they will begin their career in a lowlevel court but may move up as openings occur. Although this career process isolates the judges who take on guild-like characteristics as civil servants, it also means that judges are often better trained than is frequently the case in the United States (where it is not uncommon for judges to have had no judicial experience whatsoever). Further, the quality of judging may be higher since candidates are chosen from among the best law school graduates. At the top in constitutional courts, for example, the quality of decision making is the equal of that found anywhere.

Public prosecutor in Civil law countries are much like U. S. district attorneys, but they also are required to represent the public interest in proceedings between private persons in court situations. In Italy and France, the prosecutor is also a member of the judiciary, allowing some shifting back and forth from prosecutor to judge. Some degree of shifting back and forth also takes place in Germany. Those lawyers working for the government in administrative positions are career bureaucrats. Closest to the U. S. lawyer in private practice is the French avocat (distinctions such as those between the avoues, who acted as solicitors in appeals courts, and the conseil juridiques, who give general advice and represent clients before commercial courts, are gradually being eliminated or reduced in significance), the German anwalt or Italian avvocato (Merryman et al., p. 918). Much different from that known in the United States is the notary who receives legal training and is an important person. He drafts important legal instruments, such as corporate charters, wills, and instruments transferring land, as well as contracts. Most important, he authenticates documents. Once he does so, the instrument is accepted in court without further question. They also have monopolistic control over assigned territories. In Germany the services of a notary are required to validate legal documents for purchase, sale, and mortgage of land, for official records of decisions of company meetings, and for sale of shares in a private company (Merryman et al., p 911). Academic lawyers are found in a law school where they carry on the tradition of the old Roman juriconsult. However, most academic lawyers work for a professor with little or no pay, and wait for a vacancy that may never come. In Latin American countries, such persons may hardly earn a living, having to take on regular work as a lawyer in private practice or in public office.


Something should be said, in brief, about variations in procedure between the two systems. Here, the word "civil" is used in contrast to criminal. There is no trial or jury in civil cases, as may often be the case in the United States, though not in England. The entire process is different. The presence of a jury in the United States forces an acceleration of the entire process because of the difficulty and expense of getting the jury assembled and empanelled. Once that is the case, the court proceeds immediately with the trial in an attempt to conclude as quickly as possible.

In Civil law jurisdictions, civil cases go much more slowly. There is a brief preliminary stage when pleadings are submitted to a hearing judge. Next follows an evidence-taking, where the hearing judge takes notes and prepares a written record. That is later submitted to the deciding judge who receives briefs from the counsel and listens to arguments. All of this takes the form of a series of meetings as each issue is brought to the attention of the hearing judge. There is little surprise as each lawyer is notified of each issue as it comes up, and, without a jury, there is no cross-examination. Generally, questions are passed to the judge who may conduct the investigation. There are fewer of the rules of evidence familiar to American lawyers (such as the exclusionary rule whereby illegally gathered information is excluded from trial), though a number of rules are employed, such as excluding biased persons from testifying, as well as taking what is called a "decisory oath" in some countries. There is in many countries a "loser pays" rule, referring mostly to legal fees, though the amounts are usually limited by a court schedule. Contingent fees are usually considered illegal (France) or unethical (Germany) but are found in Japan, Indonesia, and Thailand (Merryman et al., p. 1026). Many foreign legal authorities are appalled by its prevalence in the United States, feeling that a lawyer should not be personally given a stake in the outcome of a case.

Although substantive criminal law is similar in both systems, civil law jurisdictions, in line with the revolutionary principle of limiting the power of judges, reject the American practice, which gives the judge power to award penal and general damages in criminal cases, not to speak of the contempt power (which is very rare), instead insisting the judge be limited to what is provided for in legislation. The contrast is often drawn (or overdrawn) between what is called the "accusatory" model in the United States and the "inquisitorial" model in civil law countries. Historically, the accusatory procedure is felt to have been a development from that of private vengeance in which the interested parties would be the main participants. Instead of settling their dispute by direct conflict or feud, a legal procedure would involve a neutral third party who would seek to secure a settlement. In such a triadic situation, as noted at the outset, the object was to secure an outcome that would settle the matter by leaving each party feeling justice had been done. In earlier times, when trial was by battle, ordeal, or other ways, although seeming to be a throwback to a time of "barbarous" cruelty, these methods, apart from their presumed psychological effects (the guilty party feeling he would be caught and so offering confession at once), had the virtue that they brought the conflict to an end, and prevented further acts of vengeance that would disturb the peace of the community. With the accusatory practice, presumably conflict would also be terminated but might go on if each party felt justice had not been done.

The inquisitorial model introduced the state as an active participant in the trial. Now the judge, who is after all a representative of government, is in a coalition with the prosecution against the third party, the defendant. Although this biases the process, in practice, the introduction of the jury, the fact that proceedings are oral, as well as limitations on the power of the judge all combine to make the system fair, though excesses did and continue to exist.

The criminal trial is in three parts: the investigative phase, with the public prosecutor assuming an active role; the examining phase, presided over by a judge who assumes an active role in examining the evidence; and preparing a record and the trial. Judges may, if warranted, end the proceedings if they feel the evidence is not conclusive, or they may decide the case should go to trial. The accused is entitled to legal representation as well as the right to inspect the material the judge has collected. He can be questioned, but not sworn, and he or she may refuse to answer. Unlike the American system in which a defendant, if sworn, may then be cross-examined, no comparable procedure exists, though a refusal to answer by the accused may be taken into account by the jury. British judges assume a more active role in the trial process than is the case in the United States. However, this is not "inquisitorial" in a narrow sense but rather a reflection of the fact that in the English procedure the judge determines the relevancy of evidence, rather than the strict exclusionary and other rules emphasized in American courts. To do their jobs, English judges are much more willing to question witnesses or even raise issues (Glendon et al., 1982, ch.. 10).

Until the 1980s, plea bargaining was considered to be undesirable practice, only possible in America. But judicial scholars increasingly asked how could civil law jurisdictions possibly handle all the criminal cases they had to decide without some form of plea bargaining? After a spirited debate and careful research, it was finally concluded that plea bargaining, though not exactly like that used in America, was in fact being used in European countries. In the case of Germany, Hermann (1991) reports that some kind of plea bargaining takes place in from 20 to 30 percent of all cases. While far from the American percentage of 90 percent, that is still considerable, particularly since it is accompanied by other forms of sentence reduction and mitigation of offenses. It is widely employed in complex cases, such as white-collar crimes, tax evasion, and drug offenses, which present nearly impossible evidentiary problems, as well as less serious crimes, which are settled with a fine. It is rare in cases involving violent crimes, however. Bargaining occurs at all stages of a criminal proceeding, often with the active participation of the judge, who may even take the initiative. A settlement may take the form of the accused agreeing to pay a sum of money to a charitable organization. Other alternatives include penal orders that are similar to nolo contendere pleas in which the accused agrees to a fine—usually for minor misdemeanor cases, such as traffic cases. Pleas also occur if the accused makes a confession. Normally, a confession does not lead to avoidance of a trial, as is the case in America. Instead, it usually leads to a reduction in the sentence. Other countries are also beginning to allow plea bargaining as many had been doing, but are now doing more openly. The most striking example is that of Italy, which even uses the term patteggiamento, the Italian word for bargain (Piazzi and Marafioti 1992; Merryman et al., pp. 1100 ff). However, there is no reduction of the charge, as in the American system, but there is a maximum reduction of one-third of the normal sentence, which may not exceed two years, which has the effect of limiting the practice to cases with shorter normal sentences. In Italy, as is the case in other civil law countries, the trial decision is made by a panel of judges, a practice which, however costly, is defended as superior to the American practice, which places what is felt to be excessive power in the hands of a single judge.


Although we have focused on differences between the two systems, and the differences are indeed substantial, there is considerable movement toward the convergence of common and Civil law systems. The attempts to severely limit the power of judges have, over the years, been recognized as excessive and more a holdover from fears of arbitrary and class-based favoritism of judges. From the refusal to place limits on the power of legislatures, Civil law countries have developed constitutional limitations, even in the form of courts, though often hidden under other names. Historically, Civil law countries divided the field between private and public law, with most of the concern historically being with civil law (law of persons, marriage, contracts, torts, etc.). Public law was felt to be the concern of legislatures or the sovereign. However, the coming of the modern state has led to an enormous growth of administrative law, along with appropriate court systems, leading to situations not much different in essence from those found in developed common law countries.

Civil codes have receded in significance as state legislatures and parliaments enact more farreaching laws never contemplated in earlier times, particularly those associated with large-scale industry, the welfare role of governments, complex bodies of labor law, and especially with the emergence of the government as an economic participant in national affairs. Perhaps of greatest significance is the emergence of new international entities, especially the European Community, before which national codes have been slowly giving way. Of course, that tendency may be reversed, but it seems strongly in process. On the other hand, common law countries have recognized the advantages of classic civil law procedures, such as the importance of certainty in legal decision making, though such certainty is sought not through a code but by a succession of cases. The power of judges to make decisions has been the object of attempts by the U. S. Congress to place caps on awards for injury, as well as the attempt of persons to bypass courts and seek justice through changes in legislation, as in cases of pollution, abortion, and other public issues.

Is one system better than the other? The question is unanswerable in that form. Even though civil law authorities continue to be suspicious of lawyers, they discover they must have them and grant them powers they would prefer not to. That is, of course, a well-known problem in the United States as well. Each system must be understood in the context of the culture and social structure of the country that employs it. Ultimately, any question of superiority must be answered in terms of how well the system serves the legal needs of the country. Most countries, in fact, employ a mix of systems in which one finds bits and pieces of both common law and civil law systems.


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