Saggi, Conferenze e Seminari 40. Reproduced with permission of Centro di studi e ricerche di diritto comparator e straniero, diretto da M.J. Bonell
Arthur T. von Mehren
Roma (November 2000)
The discussion in a comparative perspective of the Legal System of the United States undertaken below paints with a very broad brush and is necessarily suggestive rather than definitive. Generalizations are ventured that need both qualification and concrete justification. Despite these and other shortcomings, the discussion will, it is hoped, cause readers not only to reflect upon the basic traits of their legal systems and the ways in -- and the degree to -- which these traits are shared with other legal systems but also to speculate on how the increasingly various and intensive interpenetrations of economic, governmental, and social activity may, in the course of the third millennium, change the legal landscape to which we are accustomed as the second millennium ends.
Speaking in very general terms and leaving out of account mixed legal systems such as those of Scotland, South Africa and the Scandinavian countries, the Western World has long had two dominant legal traditions: the Common Law, with its beginnings in England, and the Civil Law, rooted in continental Europe. These two traditions hold much in common. Both are products of Western civilization and share its cultural and ethical heritage. However, important differences existed -- and still exist, though to a lesser degree -- between the two traditions.
One difference respects the manner in which the authoritative starting points for legal reasoning are set out: In the Civil Law, these are contained in legislation which, when general rules and norms of private law are in question, takes the form of a code. In the Common Law, in earlier periods, starting points for legal reasoning were found in judicial decisions and, to a much lesser extent, in statutes. Today, [page 1] statutes play a larger rôle then in the past, but judicial decisions remain of central importance.
A second difference relates to the influence of Roman law. In the case of the Civil Law, the Roman influence was various and profound; on the other hand, the Common Law in structure and method was little influenced by Roman law.
A third difference concerns the style of legal analysis and thinking. Although various forces have today reduced the differences between the two traditions, civilian jurists still state legal propositions more abstractly and systematically than do jurists in the Common Law tradition. Moreover, civilians also generally place greater value than do Common Law jurists on coherence, structure, and high-level generalization. The latter proceed in a more fact-specific fashion, typically reasoning from the interests and values at stake in concrete situations rather than from the accommodation of interests and values crystalized in generalized rules and principles. Overall, the Common Law accordingly tends to place less weight on administrability and predictability than does the Civil Law.
Significant differences often exist, of course, between legal systems that all fall, broadly speaking, into one of these two great Western legal traditions. Although the French and German systems both share the hallmarks of the Civil Law tradition -- legislatively given starting points, often in the form of codes, for legal reasoning, Roman-law influence, and a penchance for abstraction and [page 2] systematization -- German jurists have in the 20th Century adhered more firmly and conscientiously to the starting points for legal reasoning contained in their codes than have French jurists to those in theirs.
Differences in the general methodology of French and German law are rooted in cultural and historical differences. Professor Berman has argued that the formative period for the German style was the Protestant Revolution begun in 1517 by Martin Luther.
... Lutheran jurists emphasized the unity of the entire body of law and its division into branches, first, of public and private law, and second, within private law, of property and obligations and then, within obligations, of contract, tort, and unjust enrichment ...
This "professorial legal system", flourished in the German universities. There the Pandekten School, through its intensive studies of juridical concepts and structures based on Roman law materials, had, by the middle of the 19th Century, prepared the ground for a unified German law by developing an abstract system of legal concepts which formed the basis for a national codification once political unity had been achieved by the adoption in 1871 of the Constitution of the German Reich.
The drafters of the BGB believed that a code could regulate completely the sphere of life to which it is directed; by systematically [page 3] using legal concepts and terms, a code would ensure a comprehensive and gapless system of justice. This vision of logical completeness (logische Geschlossenheit) did not survive World War I and the social and economic turmoil that followed. Yet still today German legal science insists on more rigorous conceptual analysis than does its French counterpart.
Different historical circumstances explain why the French approach to their codes has been less rigorous and conceptual. The French Revolution not only established "a new constitutional system, ... [it] introduced a new legal science."
[T]he French ... emhasize[d] the "clarification" of legal doctrine through interpretation of comprehensive legislative codes. Principles and precedents were subordinated ... to doctrines and rules laid down by the legislature ...
The French conception of the Code Civil's function and potential thus differed in fundamental respects from the conception, described above, held by the drafters of the BGB. Although changes have occurred in both the French and German views since their respective codes entered into force, differences still persist between these two representatives of the Civil Law tradition.
Are there fundamental differences between the U.S. and English legal systems? Indeed, can the former still be characterized as a Common Law system? Or would it be more appropriate to view the U.S. tradition as mixed in the sense that it now incorporates significant elements from not only the Common-Law but also from the Civil-Law tradition? [page 4]
II. The Reception of the Common Law on the North American Continent
The colonization of the land mass that today comprises the United States of America began in the 16th Century. The first settlers were by no means all English. In what is today Florida, they were Spanish, in Louisiana, French. The Dutch were the first to settle parts of New York. As a result, the legal traditions and laws of some states of the United States still contain elements that derive from the Civil-Law tradition. The course of political and economic development, however, has been such that the Common-Law tradition came to dominate in American law.
But that tradition underwent sea-changes in the New World. The English Common Law was never applied fully and without modification in the colonies. Institutions of English law, such as primogeniture and the rule that owners of cattle had to fence them in, did not survive in the open spaces of an egalitarian frontier society. Nor did the English distinction between solicitors and barristers, the tradition that judges could be drawn only from among the barristers, and the practicing legal profession's monopoly of legal education -- arrangements specific to the conditions of professional legal life in England -- maintain themselves in the New World.
More general and essential features of the English legal system and the Common Law tradition persisted, however. Legal analysis's concentration on case-specific decisional law continued as did the law's technical vocabulary. The distinction, so deeply rooted in English history, between courts of law and of equity and between the rules administered by each, endured. Nor did the jury's role change; [page 5] juries were not used in courts of equity but continued to play a central rôle in the courts of law administrating civil and criminal justice.
Fundamental discontinuities between the American and English legal traditions first appeared in public law. Kingship and its associated institutions had fallen into the disrepute that led to the Second Continental Congress's Declaration of Independence on July 4, 1776. The distinctive features of American public law -- federalism, the presidential system, and the rôle of courts as guardians of the constitution -- were the product of the successful struggle for independence and of the problems that the revolting colonies faced in forming a nation from thirteen separate States.
Where private law was concerned, the American Revolution did not bring about a comparable break with English practices and traditions. The ties with England did loosen, however, and American judges, jurists, and legislators began in a more independent and self-conscious fashion than before to develop -- using the received English law as a basis -- legal institutions and doctrines that reflected the economic, political, and social realities of the new American polity.
During the first decades of the 19th century, a significant American legal scholarship emerged; the writings of such jurists as Chancellor Kent and Justice Joseph Story -- and later works such as the path breaking 1890 article of Warren and Brandeis on the Right to Privacy  -- were influential not only in the United States, but also abroad. During this period, university legal education took on importance. By the turn of the century, national law schools -- beginning with Harvard -- began to dominate American legal education. The apprenticeship system was in decline and, as [page 6] geographical mobility increased, law schools that prepared for practice only in a particular jurisdiction could not attract the best students. National law schools provided a training which, with some additional work to master the particularities of a given jurisdiction's law, prepared the student for practice in all states -- except Louisiana -- of the United States. In England, on the other hand, legal education remained essentially the province of practitioners until the 20th Century was well begun.
III. The Emergence of a Distinctive American Legal Tradition 
Over time a distinctive American legal tradition has emerged, one that -- while still faithful in many respects to the Common-Law tradition -- has developed original features and moved, in some respects, closer to the Civil-Law tradition.
1. The Significance and Standing of Judicial Decisions in American Law
Judicial decisions rendered by Common-Law courts, still a source of law of central importance in contemporary Common-Law systems, differ in important respects from decisions of Civil-Law courts. They give, for example, a far more explicit and complete explanation of the court's reasoning than do their Civil Law counterparts. The opinion is written by one judge and bears his name. Other judges are free to concur or dissent in separate, reasoned, and signed opinions. Unlike continental European courts, English and American courts do not face the outside world as a single authority [page 7] that always speaks with only one, unanimous and anonymous voice.
In theory, courts in the Civil-Law tradition do not consider judicial decisions a source of law; accordingly, although considerations of equal treatment, predictability, and economy of effort, support the principle that courts should not depart from positions previously taken except for very good reasons, at least doctrinally the Civil-Law tradition does not accept the principle of stare decisis.
In the Common-Law tradition, the view prevails that judicial decisions are a source of law which entails courts being bound in significant measure by their own previous decisions. For a variety of reasons, American courts of last resort have, however, long been more willing than their English counterparts to overrule their previous decisions. The differing views can be explained in intellectual, political, and sociological terms.
Historically, the need to develop a law appropriate for a new and expanding economy and society caused American courts to take a more relaxed view than did the English courts of the precedential value of previously decided cases. Facing dynamic and rapid growth, a strict concept of stare decisis did not seem appropriate.
Of importance is, moreover, the comparative-law dimension in American law that results from the American federal system having left control over most private-law matters in the states of the Union; consequently, different solutions for the same problem arise with some frequency. The resulting comparative dimension informs the teaching of law in the United States and trains jurists to consider the relative merits of differing solutions to common problems. [page 8]
Today there is an increasingly important comparative dimension as well in English thinking about law due to Great Britain's participation in the European Union. This dimension has begun to influence the English courts and, in greater measure, English legal education. English courts remain, however, much more hesitant than are American courts to overrule their previous decisions. Their greater reluctance derives, at least in part, from the greater likelihood in parliamentary systems of legislative intervention than in systems where the chief executive's tenure does not depend upon his control of the legislature. Moreover, where legal rules and principles resting on provisions contained in the federal or a state constitution are in question, the legislative branch can displace judicial decisions only through amendment of the constitution, usually a difficult and time-consuming process. The English parliament is not, of course, bound by a written constitution.
2. Codification in American Law
In Civil Law systems, traditionally the most important form taken by legislation in the area of private law is the code. In conception and style, codes are emanations of the legal science that developed over the centuries in continental European universities. Codes exhibit qualities of comprehensiveness, high-level generality, and internal coherence. In the Common Law, on the other hand, statutes were seen as remedying a particular mischief; accordingly, they did not provide a basis for reasoning by analogy. [page 9]
The Civil Law's ideal of codification has, however, not been without attraction for American jurists. A movement for codification emerged in the United States around the middle of the 19th Century led by David Dudley Field (1805-1894), a distinguished New York lawyer. Field's ambitious effort to codify both the procedural and substantive law of New York failed due to the bar's opposition which climaxed in James C. Carter's -- Field's arch opponent -- 1884 paper on "The Proposed Codification of Our Common Law". The paper is the American analogue to Savigny's Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft. Field's civil procedure code was adopted by some thirty states; sixteen states enacted his penal code and his code of penal procedure. Five states, including California, adopted and retained his civil code.
These adoptions did not, however, signal acceptance by the American Common-Law tradition of codes in the Civil-Law sense. In 1884, Professor Pomeroy published in California an article in which he argued that the Civil Code's provisions were to be regarded as merely declaratory of Common Law and equitable rules and doctrines except where a clear intent to depart from them was discernible. His position rested on the proposition that, as many questions did not receive explicit answers in the Code, it could not constitute the primary source of the law of private rights. Pomeroy's unspoken premise was that a Code is not an organic and coherent whole; accordingly, it can not provide a starting point for legal reasoning. He viewed the California Civil Code in the way Coke viewed a statute. [page 10]
Many states of the United States have today so-called codes; these are, for the most part, treated like statutes. Moreover, even in legislation such as the Uniform Commercial Code, one does not find the systematic structure and the relatively high degree of generalization and conceptualization typical of codes in Civil-Law systems. In contemporary American judicial thinking, only modest movement has occurred in the direction of viewing "codes" as fresh starts rather than mere compilations, systematizations, and declarations of judicially established propositions.
There is, however, one route through which the style of thought and presentation embodied in Civil-Law codes has achieved some acceptance by American jurists. The American federal system, with its private-law diversity, has called forth what can be seen as a kind of unofficial codification, namely, the Restatements of the Law.
Sponsored by the American Law Institute, a private organization founded in 1923 that brings together judges, practitioners, and scholars, each Restatement endeavors to present an area of law in a comprehensive, relatively generalized, and more or less systematic form. The first Restatement to be completed was the Restatement of the Law of Contracts, promulgated in May, 1932. It was followed by Restatements dealing with such subjects as Agency, Conflict of Laws, Foreign Relations Law, Judgments, Property, Restitution, Torts, and Trusts.
After World War II, the Law Institute undertook the task of reexamining and revising the existing Restatements. Among the revisions accomplished are the Restatements of the Law Second for Agency, Conflict of Laws, Contracts, Torts, and Trusts.
Restatements are influential not only through the specific solutions they provide but also, particularly in the case of those [page 11] completed in the latter decades of the 20th Century, for their presentation of areas of law in fairly comprehensive, generalized, and systematic terms that encourage thinking and analysis along lines in some measure akin to Civil Law thinking about, and analysis of, code provisions.
3. Theory and Practice of Litigational Justice in American Law
In contemporary American Law, views that arguably are not part of either the Common-Law or the Civil-Law tradition have emerged in the course of the 20th Century. American jurists consider adjudication's contribution more important to the development of, and adjustments in, civil society than do their counterparts in most other legal systems. American society entrusts in many areas significantly more discretionary authority and creative responsibility to its judges than do most other contemporary societies.
Many litigation practices and tools accepted by the American system are, moreover, curbed or entirely rejected elsewhere. For example, the American system takes an exceptionally permissive view of contingent-fee arrangements and, typically, the unsuccessful party is not required to pay his opponents' litigation expenses. The robust discovery available in American courts is not to be found elsewhere. Unlike most Civil-Law systems, in American practice lawyers contact witnesses and talk at length with them before they give their testimony in court. Moreover, the lawyers control through direct and cross-examination the flow, pace, and scope of the witnesses' in-court-testimony. [page 12]
Juries play a far more important role in private-law litigation in the United States than elsewhere. In most of the world, including England, juries are no longer used for private-law matters. The views of American jurors respecting compensation for harm suffered are shaped by an affluent materialistic society and encouraged by skillful plaintiff's attorneys often working under a contingent-fee agreement. In the American scheme of things, the assessment of damages can serve, moreover, not only to compensate victims but also to punish wrongdoers by imposing multiple or punitive damages.
The claims of adjudicatory authority in the international sense made by American courts in matters that are non-local also go significantly further than those made by many other legal systems. Furthermore, American procedural law has developed class-action procedures that have no counterparts in the procedural law of Civil-Law jurisdictions and go well beyond the practices of most -- if not all -- other Common-Law jurisdictions.
In multiple respects, therefore, American theory and practice touching issues of litigational justice have developed in ways that differ in many and fundamental respects from the contemporary practices of other legal orders, Common Law and Civil Law alike.
4. The Distinctive Character of American Legal Culture
Arguably, American law has established its own tradition, one which -- though connected in important ways with the Common-Law tradition and in a lesser degree with the Civil-Law tradition -- has many uniquely American traits. They derive from institutions and conditions that are not replicated elsewhere. These include the existence of a constitutional system with a strong federalist cast and [page 13] independent state governments coupled with a powerful central government. To maintain this structure and to guaranty fundamental human rights, an independent judicial branch of government was created. The Supreme Court of the United States was thus called upon to serve, with the assistance of the lower courts, as the "balance wheel" of the federal system, guardian of individual rights, and arbiter of the allocation of powers among the executive, judicial, and legislative branches of the federal government.
The extent to which courts, especially -- but by no means only -- the Supreme Court of the United States, determine the values and principles of American economic, social, and personal life is unmatched elsewhere. Addressing such matters has, no doubt, resulted in the strong tendency of courts in the United States to look beyond concepts and doctrine to policy and interests.
The attention that American jurisprudence gives to law and economics where issues affecting the working of markets are concerned is clearly fostered by the willingness of American courts to address frankly the policies that underlie rules and principles of law. The remarkable creativity and vigor of the American economy in the last half of the twentieth century has brought about an Americanization of many areas of business and commercial life. A role similar to that long played by English institutions and practices in the field of insurance law is now assumed by American counterparts in many areas of international commerce and investment. American influence and success in the international market place, coupled with the inventiveness, energy, and skill of American lawyers and law firms, have come to exert enormous influence on the functioning of the international economic system.
In light of developments and traits such as noted above, arguably American law is today unique in so many [page 14] respects and at so many levels that the claim that it remains within the Common-Law tradition is, at least, problematic. The standards to be used in identifying legal traditions are, of course, open to debate and become increasingly problematic as economic and social life become less and less localized with the consequence that attitudes and practices of jurists from different countries and societies tend to converge. Perhaps one's legal tradition can best be identified by ascertaining the systems with whose jurists one can most easily communicate on legal matters. By such a test, at least in many areas of law, the United States is still, though less squarely than in the past, within the Common-Law tradition.
Although deeply rooted in historical circumstance, long-standing institutional arrangements, and taught tradition, the cultural, economic, moral, and social contexts that shape the multiple facets of society, including the legal order, change over time. Change may occur rapidly or slowly; it may reinforce a society's elements of uniqueness or cause diverse societies to converge. Seen in a broad perspective, the Civil-Law and Common-Law traditions have each maintained their integrity for a period roughly corresponding to the second millennium of the Christian era. In the course of the third millennium, however, these two traditions may well interpenetrate and create one -- or several -- new legal traditions.
During the second millennium, system interpenetration has, of course, occurred on many occasions and in many respects. The rise of a lex mercatoria, resting not on the laws of sovereign states, but on shared practices and usage of merchants, was an early form of interpenetration in the field of law. Anational international commercial arbitration, based on the United Nations Convention on [page 15] the Recognition and Enforcement of Foreign Arbitral Awards of 1958, provides a late 20th Century example of a somewhat similar phenomenon.
Greater interpenetration clearly must result from the enormous increase in cross-border and inter-system activity that has occurred in the last half century as well as the doubtless related willingness of most legal systems to give increasing recognition to private autonomy by both tempering mandatory rules of law and allowing parties greater freedom to choose the forum for litigation and the law to be applied. It may also be that new technology in the form of the Internet will create strong incentives for harmonization to promote economic efficiency. Indeed, if the philosophy of a free, unregulated market prospers globally, convergence in many areas of law will come about through the working of the market place.
Convergence between case-law and codified systems could take place as well because of the tension that always exists in some measure between the claims of system and structure, on the one hand, and of just, fact-specific solutions, on the other. Each perspective has a contribution to make to a wise and humane system of justice. As the values in tension are incommensurate, no permanent balance is likely to be struck; accordingly, an element of instability exists on both sides of the equation that can cause each system to move closer to -- or retreat from -- the other system's position.
The experience of the 20th Century strongly suggests that, as societies and economies become increasingly complex and interrelated, legal orders will draw on both the Civil-Law and the Common-Law traditions in thinking about law and its administration. At the level of method and style, the number of legal orders no longer squarely in either the codification- or the case-law tradition has increased and, at the same time, these systems have become more [page 16] complex in their nature. The 21st Century will doubtless witness a continuation of developments along these lines.
The European Union has brought about a confrontation of the Civil Law, the Common Law, and the mixed Scottish and Scandinavian systems that could well result in a new system that blends in an original fashion these legal traditions. Should a distinct European-Union legal tradition emerge, it will likely differ in significant respects from the legal traditions that it blends. Substantial blendings of legal traditions may eventually occur as well in other parts of the world; if so, perhaps only legal historians will find useful the contrasting categories of Common Law and Civil Law that so largely dominated comparative thinking and analysis in the second millennium.
Will the result then be one homogenous legal tradition that is accepted throughout the world? Probably not. Until such time as the institutions, values, and circumstances that shape law are homogeneous, diversity will ensure significant differences in legal practices, institutions, and values. Comparatists will still need to understand different approaches to the eternal problem of how a society can provide efficient, fair, and reliable justice. [page 17]
1. See, e.g., Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts (Tübingen 1996, J.C.B. Mohr (Paul Siebeck), 3rd ed., 1996) 178. But see also Reinhard Zimmermann, Der europäische Charakter des englischen Rechts, Historische Verbindungen zwischen civil law und common law, 1 ZEuP 4 (1993); M. H. Hoeflich, Roman Law in American Legal Culture, 66 Tul. L. Rev. 1723 (1992).
2. See Zweigert & Kötz, previous note, 68-69.
3. Harold Berman, The Western Legal Tradition in a Millennial Perspective: Past and Future, 60 Louisiana L. Rev. 739, 744-746 (2000).
4. Id. 745.
5. Id. 746.
6. Id. 750.
7. See R. H. Helmholz, Use of the Civil Law in Post-Revolutionary American Jurisprudence, 66 Tul. L. Rev. 1649 (1992).
8. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
9. For a more detailed consideration of many of the matters discussed in this section, see Arthur T. von Mehren, Law in the United States: A General and Comparative View (1989).
10. Consider, for example, the debate in England on a right of privacy following the incorporation of the European Convention on Human Rights through the Human Rights Act 1998. See Basel S. Markesinis, Privacy, Freedom of Expression, and the Horizontal Effect of the Human Rights Bill: Lessons from Germany, 115 L. Q. Rev. 47 (1999).
11. In Heydon's Case, 3 Coke 7a, 76 Eng. Rep. 637 (K.B. 1584), Coke posited that the body of law which rested on judicial decisions formed a complete and coherent system; accordingly, a statute was to be construed to suppress only the particular mischief that it addressed. In consequence, statutes were not seen as stating germinating principles or as providing a basis for reasoning by analogy.
12. Published in 1814, English translation by A. Hayward, 1831.