Common Law, Civil Law, and Jurisdictional Competition

This month’s Liberty Forum debate on the relationship between the inherited common law norms of liberty and our written Constitution also opens to a conversation on the comparison between civil law and common law and the degree to which each system protects liberty and permits fruits of liberty like commerce and jurisdictional competition to flourish. In this post I point to some comparative strengths each system possesses and the prerequisites to their successful operation which may no longer be operative.

A good way to explore the nature and implications of the rule of law in a free society is to compare the Civil Law of Europe with the Common Law traditions of England and America. Harold Berman’s second volume of Law and Revolution invites just such an exercise by examining the influence of the Reformation on both. What follows are some general reflections that were raised in my mind by that reading and current events, These should not be taken as final conclusions,but merely points for further conversation with respect to how both systems relate to liberty.

Surely the law must be comprehensible to those who live under it. Surely it must be set down in such a way that it is applicable consistently among rulers and ruled alike.

But just as importantly, the law must also take into account the particularities of time and place. It must be adaptable to the circumstances of local understandings. And just as certainly, it should protect against the concentration of powers, giving to each citizen the possibility of appeal and protection against arbitrariness.

These are not easily negotiated points of law. Looking at each system in turn provides a powerful illustration of the tensions that must of necessity adhere within the legal framework of a free society.

To my mind, Civil Law succeeded on the Continent to perform the functions of the first order, while the Common Law succeeded best upon the second. The fact that Europe as a whole was decentralized among separate polities moderated the worst aspects of consolidated national or state systems such that Gibbon’s original observation was born out that “The division of Europe into a number of independent states, connected, however, with each other, by the general resemblance of religion, language, and manners, is productive of the most beneficial consequences to the liberty of mankind.” In the US, federalism was suppose to play much the same role. A kind of decentralization was thus critical to both systems to sustain the edifice of liberty.

That said, it is not clear to me which of the two systems fares better with respect to freedom when the federal check or the limitations of a poly-centric order are largely removed.

In both the United States and the European Union, central authorities have enticed citizens to see the benefits of legal and regulatory uniformity across state and national lines as both more just and more efficient. In economic terms, this was presented as “streamlining,” or “cost reducing.” The reality in the case of the United States has been largely the opposite.

The regulatory powers of the states have not so much gone away, but have become partners in crime with the US national government. Federal regulatory agencies have not so much superseded, as overlapped state agencies. Rather than checks and balances, we have created systems within systems of discretionary regulatory powers, where the states are, as often as not, lobbyists in favor of more, not less, national involvement.

Add to this development the still active component of a common law based in torts, and whatever efficiencies may have been glimpsed by the promise of uniformity, have been swamped by conflicting and expensive litigation. Rather than affirming a regime under law, the expansion of national powers in the context of America’s common law heritage appears to have encouraged the re-feudalization of society, parceling out discretion among various bureaucratic agencies, court systems, and federal and state officers over which the Presidency now presides as the first among princes. Can we still then claim the rule of law, rightly understood?

In the EU context, on the other hand, there is something to be said for the primary drivers of a code based approach when decentralization fails: The law must still be comprehensible and consistent. Even if the ideal is often or usually breached, the grounds on which reforms ostensibly proceed must always turn back, if only in name, to these ends as the fundamental attributes of the civil law. These basic aims have little or nothing to do with the normative quality of particular laws, but the question is, are these requirements still useful constraints for contending over the course and character of legal reforms in general?

Where lies the best hope for liberty?

Small pickings in either case, but then, we seem reduced to sifting our hopes from little bits and scraps.

Hans Eicholz is a historian and Liberty Fund Senior Fellow. He is the author of Harmonizing Sentiments: The Declaration of Independence and the Jeffersonian Idea of Self-Government (2001), and more recently a contributor to The Constitutionalism of American States (2008).

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