What are the real differences between common and civil law systems? Probably not the ones lawyers typically think about, said Harvard Law School Professor Holger Spamann SJD ’09 last week. To commemorate his appointment as Lawrence R. Grove Professor of Law, Spamann examined the myths and reality of common and civil law, the two most widely used legal systems in the world.
Those myths include the widespread idea that common law — rooted in England and also practiced in the United States — involves precedent, or deference to previously published judicial opinion, while civil law, practiced in much of Europe and elsewhere in the world, does not.
As a lighthearted way to show how reasonable but mistaken assumptions lead to myths, Spamann displayed a now-famous photo of England’s new monarch King Charles III sitting on a throne of gold. Adding that many who see it believe the photo is from the king’s coronation, Spamann said it had in fact been taken several months before Queen Elizabeth’s death. “The actual throne that he sat on [for coronation] looked more like a pompous living room chair. But people just imagine that there has to be a fancy throne, so they believe this. I would say that common and civil law myths arise the same way.”
He defined common and civil law as legal systems of, or influenced by, England and continental Europe respectively. The latter’s center of gravity moved over time from Italy to France and Germany. England began to centralize its courts by the late 11th century, but was never completely isolated from European influence. Likewise, European courts were influenced by England — and by extension precedent, said Spamann, noting: the frequent citing of the English case Hadley v. Baxendale (1854) in common law countries around the world, and their adopting
