Institutional and Comparative Law Foundations: Civil Law and Common Law
This domain tests your grasp of the sources, reasoning style and institutional architecture of the civil-law and common-law traditions, and of the economic literature explaining those differences.
Sources and reasoning
Common law treats precedent as a binding source: courts extract the ratio decidendi, distinguish materially different facts, and follow stare decisis. Civil law starts from codified texts - the French Code civil of 1804 and the German BGB of 1900 are the reference models - and proceeds by subsumption of facts under statutory elements. The contrast is a matter of degree: jurisprudence constante and gap-filling provisions such as Article 1 of the Swiss Civil Code make judicial development central in civilian systems too, and statutes dominate modern common law.
Institutions and process
The civilian model typically features a career judiciary entering by examination, a cassation court reviewing law rather than fact, and court-appointed experts; the common-law model features lateral entry from practice, party-driven adversarial proof and lay or mixed juries. Constitutional review concentrates in a dedicated constitutional court in the Kelsenian model, against diffuse review by ordinary courts elsewhere. The EU adds a further layer: primacy, direct effect, and the preliminary reference under Article 267 TFEU, which lets national judges shape uniform interpretation.
Economic analysis
Legal-origin scholarship (La Porta, Lopez-de-Silanes, Shleifer and Vishny) correlates origin with investor protection and finance, but the causal claim is contested. Berkowitz, Pistor and Richard identify a transplant effect: imported law works poorly when it is not adapted to local needs. Glaeser and Shleifer argue the adversarial system becomes attractive where evidence is hard for central officials to verify. Institutional complementarity and path dependence explain persistence without implying superiority.
Worked example
A statute is silent on a novel claim. A common-law judge asks whether an existing line of authority can be extended or distinguished, and reasons from the closest cases. A civilian judge asks whether the general clause on delict or unjust enrichment covers the facts, and consults commentary and prior decisions for persuasive guidance. Both may reach identical results; the difference lies in the authority each must cite to justify the outcome, which shapes predictability and the cost of legal innovation.
Traps
Avoid the binary caricature - most systems are mixed. Do not claim precedent is irrelevant in civil law. Do not confuse a cassation court's review of law with appeal on the facts. Do not treat legal origin as a proven cause of economic growth.