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Common Law vs.

Civil Law - There is a notion that the primary difference between the two forms of law consists in the way law is created in the systems (one is judge-made, the other is legislature-made). o There are other fundamental differences, based on historical contingencies/developments, such as the early centralization of the Royal Courts and the decentralized nature of the Holy Roman Empire: The Common Law has thereby been historically dictated by practitioners and judges, whereas the Civil Law was dictated by academicians and professors. Therefore, there is a pragmatic vs. theoretical/scholarly feel to the common law vs. civil law systems. The civilian system focuses on abstractions and has an administrative/bureaucratic/state-centric flavor, where as the common law system focuses on concrete examples and judicial autonomy. o How come the judge-centric mechanisms of the common law do not work to the detriment of the separation of powers? So, since the standing/role of the judge and advocate and methods of legal education were quite divergent, techniques of discovering and applying the law have developed very differently. The common law corresponds to empiricism and inductive forms of reasoning (going from cases to general rules) whereas the civilian system corresponds to rationalism (universalism) and deductive forms of reasoning. o The common law is very incremental (case-by-case) and whereas the civil law takes great leaps and strides each time it is changed. o A way in which this difference manifests itself, is the role of facts; civilian courts to not really focus on the facts because they focus on the rules to be applied and the general universality of those rules. Civilian courts try to give the impression that the judgment springs from the text of the statute (272). o In the civilian system, there is a devotion to the idea of dispassionate universalistic positivism. But the two systems converge when it comes to law finding to an extent; even though in common law systems there is the doctrine of the binding force of precedent (stare decisis), and there is technically no such thing in civilian systems, the former have been becoming more flexible and the latter more binding in terms of case law. o There are value judgments inherent in the common law judges decision to abide by or overrule a precedent. o Plus, the civilian courts generally respect decisions of superior courts on point. o The doctrine of stare decisis in the Common Law and the practice of Continental courts generally lead to the same results (271). There are characteristic differences between the two systems when it comes to statutory construction (273).

The common law system views legislation as corrective and a sort of emergency/ad hoc measure that is to be viewed with skepticism, whereas the civil law practitioner views itself as a partner of the legislation, and views statutes as a source of judicial creativity (they look to the purpose of the statute itself to deal with inadequacies of the statute).

Strict Liability/Risk-Based Liability in Civilian Systems: - French Case: o The provision 1384(1) C.civ: everyone is liable for the damage caused by the conduct of things in ones care (garde). Liability here can only be rebutted by proof of an unforeseeable event, force majeure, or an extraneous cause that cannot be imputed to him. Fault is immaterial. The common law libertarian assumption of freedom does not exist. Prohibition is not carved out of freedom; freedom is carved out of prohibition. o In the specific case, the Cour de Cassation eliminates some of the limitations on this doctrine of risk-based liability. The lower court says that since the vehicle was not proven to be defective, fault of the guardian of the truck must be shown. So the question is essentially what happens when the machine is directed by a person? The court holds that in the absence of any defect of the machine, the wrong can only be imputed to the fault of the driver. The Cour de Cassation, however, looking at the statute derives no distinction between things causing damage on their own or things being operated by a person and then causing damage. So, it is not necessary that the thing suffered from a defect which was inherent to its nature and liable to cause damage, since 1384 imposes liability on account of the garde of the thing, and not on account of the thing itself. The Cour de Cassation finds irrelevant the following limiting factors: o The immoveable/moveable distinction o The level of autonomy of the thing o The defective/non-defective distinction o The dangerous/non-dangerous distinction So, the only condition which must be satisfied in order for liability to be imposed is that the thing intervened in the causation of injury (in the absence of force majeure), or in other words that the behavior of the thing caused the injury. o So, on the basis of the vague provision, the judges build a pyramid of strict liability for automobile cases on top of it. ***This illustrates the fallacy of the notion that civil law judges dont create law. They certainly created law here, but they paraded it as code/statutory interpretation*** - German Case: o The BGH states that there is no risk-based liability under German law except in those cases where the legislature has expressly provided for it. o In this specific case regarding the defective traffic lights, the court refuses to contradict the rule above; the legislature has not acted, so there will be no risk-based liability in the absence of any fault.

The main argument in favor of this position touts legal certainty; when the legislature acts, it is clean and clear. To create an exemption judicially would be long and confusing. So the BGH decided not to create a general regime for liability as the Court de Cassation did in the case above. There is more of a respect for an ethos of libertarianism. o However, currently, risk and fault based liability systems are now considered to be different but equal principles of liability. The latters rationale is that damage is a consequence of a violation of a standard of behavior imposed by the legal order in order to avoid an unreasonably large risk of damage to others. The formers rationale is that the person who operates for his purposes a particularly dangerous installation or creates a source of particular risk must assume liability for damages that result from the realization of that risk. They can now be plead in the alternative in the BGH. What explains this difference? o As discussed before, the French code is vaguer (principle-based) than the German code, which is exhaustive and rule-based.