Wednesday, May 27, 2009

The German Legacy

A little background's in order.  You may have heard the phrases "civil law" and "common law."  The UK, much of the Commonwealth, and the US are common law jurisdictions.  Continental Europe and the rest of the world?  They're civil law systems.  What's the difference?

Without getting into a ton of historical detail, the big difference is that civil law systems don't care about precedent.  In the US and the UK, precedent is huge.  The bulk of American law isn't what a statute says you can or can't do, it's in judicial decisions that build on previous decisions that build on previous decisions that build on previous decisions.  Most of your first year in law school is really spent just trying to learn how to focus on the legal conclusion (the "holding") and ignoring the rest (dicta).  Then you spend a lot more time figuring out when the nonsense isn't nonsense and when the official decision isn't really the official decision.  This is also the perpetual employment system for law professors.

In the rest of the world, the law in the statute book is actually the law.  When a judge hears a case, she doesn't care what Buzzy, J. said the week before or anything else.  What she cares about is the words in the code.  If a code isn't very applicable, it can be amended or tossed out, but the judges (in theory) just apply it regardless.

There are pros and cons to both systems, but at the heart is a very different idea of the law.  The civil code imagines the law as the idealized product of rational analysis before the fact.  Germans, no surprise here, really like this idea.  It's very thorough and exacting.  So when they published their Bunderliches Gesetzbuch (Civil Code) in 1896, it was the most modern legal document in the world.  It became the model for legal reform around the world.  Japan adopted the code almost whole-hog during the Meiji, and this is still the basis for Japanese law today.

Even the US felt and feels the influence of Germany's civil code.  A progressive minded guy in New York campaigned for a civil code in the Empire State and almost suceeded.  His brother, also enamored by the code, took a copy with him when he went west to California.  Where his brother failed, the man who went west suceeded.  California adopted a German-style civil code that remains in place today.  But a California legal scholar was not entirely sold on the civil approach and wrote an influential treatise about how interpret the new law.  Yes, it was a code but judges and lawyers should interpret it in a common-law style.  This guy's name was Hastings, my law school's namesake.

There's one more enormous German influence on US law.  The bulk of modern commercial law, especially the UCC, was stolen from Germany by a Columbia law professor named Llewellyn.


  1. So if California had more of a civil law system, maybe we'd have the freedom to marry whomever we wanted? I got the feeling that Tuesday's decision in the State Supreme Court was based mostly on precedent, and less on "dicta". What do you think?

  2. Haven't read the opinion, so I can't say directly. But I will say that I doubt civil law would really change how people deal with marriage. Most of the world has a civil law system, but marriage equality is pretty hit or miss.