Grappling with the Civil-Common Law Divide in Constitutional Law

—Maartje De Visser, Singapore Management University, Yong Pung How School of Law

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

Considerable attention has been devoted, in comparative law generally, to classificatory efforts. A quintessential distinction is that between the civil and the common law traditions, which is normally associated with the field of private law, as this is the field that general comparatists have tended to focus on. For those scholars, the implications of this divide and its enduring relevance are major subjects of debate, notably when it comes to the feasibility of legal transplants and in the context of initiatives to create transnational or international legal regimes. In contrast, in comparative constitutional law, there is a fairly widespread tendency to give the civil/common law divide short shrift. I would like to suggest that this may be misguided, and that the divide may also be of interest in our field.

References to the civil or common law have most frequently appeared in works that discuss the institutional arrangements for constitutional review by judges. The centralized Kelsenian model with its constitutional court is often seen as the logical, or even the only viable, option for civil law countries (though exceptions exist, think for instance of the Scandinavian jurisdictions, Brazil, and Mexico). Entrusting a separate judicial institution with the task of determining the constitutionality of legislation is in keeping with the traditional conception of the separation of powers in many of these countries, according to which regular judges should play a modest role and give effect to, rather than evaluate, the work of the democratically elected legislature. From a more operational perspective, there is a concern to safeguard legal certainty: if every judge could decide on the constitutionality of legislation, as under the decentralized ‘American’ model typically practiced in the common law world, contradictory assessments could materialize given the absence of the doctrine of stare decisis and the parallel existence of multiple sets of courts, each with their own jurisdiction and apex court in the civil law tradition. 

The performance of constitutional adjudication similarly evinces traits reminiscent of the distinction between the civil and common law traditions. Analytically, the style of judgments and modes of reasoning vary, even when making allowance for the flexibility of constitutional courts to deviate from the practices employed by regular judges in the civil law tradition. Commentators have been wont to characterize common law rulings as literary, pragmatic, discursive and highly fact-sensitive, with monikers like abstract, deductive, doctrinally inclined and technical are used to describe judgments in the civil law tradition. Procedurally, there is usually a need for special constitutional or statutory provisions to regulate the legal effect of rulings by Kelsenian courts, to attenuate the usual starting point in the civil law tradition that court decisions are not recognized as a formal source of law. Behaviourally, constitutional judges in the civil law tradition generally have a more muted individual profile than their common law counterparts, the philosophy being that it is the institution that speaks – the identity and ideological beliefs of its members are deemed irrelevant. By way of example, consider the puzzlement expressed by one of the members of the German Federal Constitutional Court about the personalization of individual judges in a commentary written in the wake of the passing of US Justice Ruth Bader Ginsburg. In a related vein, while many constitutional courts can issue separate opinions, the preference is to avoid doing so, in keeping with the general requirement for civil law judges to speak with a single voice to ensure legal certainty. In terms of the sources considered in constitutional adjudication, moreover, it has been argued that affiliation with the civil or common law influences a court’s willingness to explicitly refer to foreign precedents.

A broader application of the civil/common law lens beyond the study of court design and performance of adjudication may however be warranted. Fleiner and Saunders have suggested that the two traditions have historically adopted different approaches to evergreen concepts like the constitution, sovereignty, and constituent power, or the trias politica, and that those original understandings continue to affect the contemporary meaning ascribed to these concepts. To this can be added the boundary between public and private law: the separation between both is one of the core pillars on which the legal system is built in the civil law tradition, while the common law adopts a more fluid approach. This may, amongst others, affect the effective content of administrative law or tort law as far as public wrongs are concerned. Another possible topic relates to the explicit inclusion of eternity clauses in the constitution (found predominantly in civil law countries, which fits the philosophy of having the positive law provide complete coverage for all legal problems) as compared to the basic structure doctrine (chiefly associated with jurisdictions that subscribe to the common law tradition, and which recognizes a meaningful role of the courts in the formation of the legal system). 

To be clear, I do not wish to claim that there actually is a stark divide between the common and civil law in the field of comparative constitutional law, nor that this classic categorization is as poignant throughout our field as it is taken to be in comparative private law. Rather, my view is that these questions are worth exploring. Relatedly, and from a methodological perspective, instead of intuiting that the civil/common law divide is obviously relevant or completely immaterial for a given constitutional comparison, the better approach is to deliberately query whether this is a valid, and valuable, heuristic in thinking about a constitutional topic. If the fact that countries belong to the civil or common law tradition may influence the choice of comparator jurisdictions, the constitutional comparatist ought to explain why she considers this attribute as relevant (or not), considering the topic she is interested in. This extends to addressing the relative importance of this selection criterion vis-à-vis other possible grounds for case selection. Similarly, when it appears that a country’s affiliation with the civil or common law tradition may shed light on its approach to the constitutional topic under study, or may affect the viability of a proposed legal transplant, this too should be explicated in clear and cogent terms. In both scenarios, the extensive general comparative literature would provide a natural starting point for engaging with questions pertaining to the civil/common law divide, with a view to fleshing out the distinctive features, if any, of the two legal traditions from a constitutional dimension.

Suggested citation: Maartje De Visser, Grappling with the Civil-Common Law Divide in Constitutional Law, Int’l J. Const. L. Blog, Jul. 20, 2022, at: http://www.iconnectblog.com/2022/07/grappling-with-the-civil-common-law-divide-in-constitutional-law/