Abstract
The points we wish to make in this book are two: first, that civil procedure today is highly varied and exceptionally dynamic and, two, that it warrants significant comparative study and that, in fact, the field of comparative civil procedure has matured to become an integral and mainstream part of legal scholarship. This chapter provides the starting point, explaining the origins of the field of comparative civil procedure, and the traditional discourse explaining the difference, the divergence between Common and Civil law models on such topics as the role of judges, availability of court proceedings, the actual functioning of the trial and additional social and cultural aspects of litigation.
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Notes
- 1.
Dynamic is defined as “always active or changing”. See Merrian-Webster online at http://www.merriam-webster.com/dictionary/dynamic. While dynamism is defined as “a dynamic or expansionist quality”. See http://www.merriam-webster.com/dictionary/dynamism.
- 2.
See: Peter Gottwald “Comparative Civil Procedure ” 22 Ritsumeikan L. Rev. 23 (2005). Also see: Catherine Valcke “Comparative Law as Comparative Jurisprudence – the Comparability of Legal Systems” 52 Am. J. Comp. L. 713 (2004).
- 3.
See: Gottwald, 22 Ritsumeikan L. Rev. 23, id. at 24. See, more generally: George A. Bermann, Patrick Glenn, Kim Lane Scheppele, Amr Shalakany, David V. Snyder & Elisabeth Zoller “Comparative Law: Problems and Prospects” 26 Am. U. Int’l L. Rev. 935 (2011). On the concept of functionalism in comparative law see: Jaakko Husa “Metamorphosis of Functionalism – or Back to Basics?” 18(4) Maastricht J. of Europ. & Comp. L. 548 (2011). Also see: Robert Wyness Millar “The Mechanism of Fact-Discovery: A Study in Comparative Civil Procedure ” 32 Ill. L. Rev. 261 (1937–1938).
- 4.
“Comparatists fall into one of three Camps. First, there are those who see legal systems as differing so greatly in fundamental respects that each is essentially unique…. A second camp is comprised of those comparatists who believe that our rapidly shrinking world is moving inexorably towards convergence…. Finally, there are those who take the position that neither uniqueness nor convergence… characterize[s] nonlocal law.” See: Arthur T. von Mehren “The Rise of Transnational Legal Practice and the Task of Comparative Law” 75 Tul. L. Rev. 1215 (2001).
- 5.
Markesinis makes the following interesting argument: he suggests “that in their history the two systems often converged only to diverge again later. It is a sub-thesis of this essay then that the convergences occurred when practitioners took the lead in the law-shaping process of both countries and was weakened whenever ‘theoreticians’ obtained the upper hand. This is the thesis of a comparative lawyer, not a legal historian; and it is put forward tentatively for the sake of further consideration.” See: Sir Basil Markesinis “French System Builders and English Problem Solvers: Missed and Emerging Opportunities for Convergence of French and English Law” 40 Tex. Int’l L.J. 663, 664 (2005).
- 6.
For an example of the comparativist’s malaise see: Mathias M. Siems “The End of Comparative Law” 2 J. of Comp. L. 133 (2007); for a more optimistic view see: Oliver Brand “Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal Studies” 32 Brook. J. Int’l L. 405 (2007); Russell A. Miller “Remarks at the Opening of the Symposium Celebrating the 10th Anniversary of the Geraman Law Journal – The German Law Journal As ‘Lived’ Comparative Law” 10 German L.J. 1309 (2009).
- 7.
We use in this chapter common law definitions from Black’s Law Dictionary, (9th ed., 2009); for more detailed discussion of common and civil law definitions cf.: J.A. Jolowicz “Civil Litigation: What’s it for?” 67(3) Cambridge L. J. 508, 508–509 (2008).
- 8.
See: Frederick Pollock & Frederick William Maitland The History of English Law before the Time of Edward I (Cambridge, 1968, vol. 2) 574; also see: Jolowicz, Cambridge, id. at pp. 509–510 and cf. J.A. Jolowicz “Adversarial and Inquisitorial Models of Civil Procedure” 52(2) In’tl & Comp. L. Q. 281, a.
- 9.
See: Jolowicz, Cambridge, id. at p. 510.
- 10.
Comparisons of civil procedure systems can, of course, be made at many degrees of depth. For example, one can analyze the relationship between the system of rights and remedies administrated through judicial system and the system of administrative rights and remedies conducted through the social ‘safety net’ or the relationship between a procedural system and the structure of authority in the regime in which it is embedded, from strong hierarchical central regimes to decentralized systems. For the former analysis see: Geoffrey C. Hazard, Jr. “Civil Procedure in Comparative Perspective” 49 Sup. Ct. L. Rev. 2d Ser. (Canada) 657 (2010); for the latter see: Mirjan Damaška “The Common law/ Civil Law Divide: Residual Truth of a Misleading Distinctions,” in J. Walker & O. Chase eds., Common Law Civil Law and the Future of Categories 3 (2010).
- 11.
On this and the relevance of ancient legal codes see: Ernest Metzger “Roman Judges, case Law, and Principles of Procedure” 22 Law & Hist. Rev. 243 (2004); S. Stuart Madden “Integrating Comparative Law Concepts into the First Year Curriculum: Torts” 56 J. Leg. Ed. 560 (2006); on earlier legal traditions see: J. Russell VerSteeg “Legal Procedure and the Law of Evidence in Ancient Egypt” 9 Tul. J. Int’l & Comp. L. 233 (2001) & Martha T. Roth “Mesopotamian Legal Traditions and the Law of Hammurabi” 71 Chi.-Kent L. Rev. (1995) 13.
- 12.
See: Scott Dodson “The Challenge of Comparative Civil Procedure : Civil Litigation in Comparative Context, by Oscar G. Chase, Helen Hsershkoff, Linda Silberman, Yashuei Taniguchi, Vincezo Varano & Adrian Zuckerman, 2007 St. Paul, Minn.: West Group, p. 607” 60 Ala. L. Rev. 133, 138–139 (2008).
- 13.
Dodson, Ala. L. Rev. id. at pp. 141–142. It is useful to remind the readers of the now classics debate that took place in the 1980s between Prof. John H. Langbein, who extolled the virtues of German civil procedure, which he found superior that of the United States, and Prof. Ron J. Allen, who questioned this view. For a useful overview of the debate and description of the German civil procedure see: Michael Bohlander “The German Advantage Revisited: An Inside View of German Civil Procedure in the Nineties” 13 Tul. Eur. & Civ. L.F. 25 (1998). For more on the debate see: Bradley Bryan “Justice and Advantage in Civil Procedure: Langbein’s Conceptions of Comparative Law and Procedural Justice in Question” 11 Tulsa J. Comp. & Int’l L. 521 (2004).
- 14.
For the former see: Dodson, Ala. L. Rev. id. at p. 140 & fns. 38–39; for the latter see: Oscar G. Chase, “American ‘Exceptionalism’ and Comparative Procedure” 50 Am. J. Comp. L. 277, 278 (2002) (using the United States as an example he shows “how the well-documented idiosyncrasies of American culture are reflected in the procedural rules that govern civil litigation.”) Also see: John D. Jackson, “Playing the Culture Card in Resisting Cross-Jurisdictional Transplants: A Comment on ‘Legal Processes and National Culture’” 5 Cardozo J. Int’l and Comp. L. 51 (1997).
- 15.
See: Otto Kahn-Freund “On Uses and Misuses of Comparative Law” 37 Modern L. Rev. 1, 20 (1974). Also see: John W. Cairns “Watson, Walton, and the History of Legal Transplants” 41 Ga. J. Int’l & Comp. L. 637, 664–665 (2013).
- 16.
See: Gottwald, 22 Ritsumeikan L. Rev. 23, id. at 24–25.
- 17.
See: Gottwald, 22 Ritsumeikan L. Rev. 23, id. at 26–28.
- 18.
Dodson, Ala. L. Rev. id. at p. 143.
- 19.
For a recent example of this kind – dealing with the divergence but also considering the convergence of the common and civil law civil procedure – see: Stephen Stewart & Annik Bouche “Civil court case management in England & Wales and Belgium: philosophy and efficiency” 28(2) C.J.Q. 206 (2009).
- 20.
See: Helge Dedek “From Norms to Facts: The Realization of Rights in Common and Civil Private Law” 56(1) McGill L. J. 77, 79–80 (cite), 82 (2010) also see: William Tetley “Mixed Jurisdictions : Common Law V. Civil Law” (Codified and Uncodified) 60 La. L. Rev. 677, 707 (2000); and Markesinis, 40 Tex. Int’l L.J., id. at 673 (noting that the development of early English law through the writ system displays all the procedural hallmarks of classic Roman Law).
- 21.
H. Patrick Glenn, Legal Traditions of the World (Oxford UP, 4th edition. 2010) p. 243 & fn. 23.
- 22.
The article reports on both common and civil law nations. The author’s thesis, however, is that this was not always the case – see: C. H. van Rhee “Civil Procedure: A European Ius Commune?” 4 Eur. Rev. of Private Rights 589 (2000). Another continental proceduralist wrote – “civil procedure has traditionally been considered a very technical branch of the law – the technical branch par excellence; and as a mere technique it has usually been studied and taught. Only too rarely have its ideological foundations, its background, its socio-political impact been analyzed.” See: Mauro Cappelletti “Social and Political Aspects of Civil Procedure – Reforms and Trends in Western and Eastern Europe” 69 Mich. L. Rev. 847, 881 (1970–1971).
- 23.
See: Hein Kötz “Civil Justice Systems in Europe and the United States” 13 Duke J. Comp. & Int’l L. 61 at 63, 66 & 72 (2003). In fairness, Kötz does also note similarities between the systems, reaching the conclusion that “in their own ways both the German and American systems are adversary systems of civil procedure.” (id. at p.67).
- 24.
On this see most notably in this section: Linda S. Mullenix “Lessons from Abroad: Complexity and Convergence ” 46 Vill. L. Rev. 1, 5–12 (2002) and the sources cited in the following fns.
- 25.
See: Geoffrey C. Hazard & Angelo Dondi “Responsibilities of Judges and Advocates in Civil and Common Law: Some Lingering Misconceptions Concerning Civil Lawsuits” 39 Cornell Int’l L. J. 59, 60–61 (2006).
- 26.
Chase, 50 Am. J. Comp. L., id. at 283.
- 27.
See: Marvin E. Frankel “The Search for Truth: An Umpireal View” 123 U. Pa. L. Rev. 1031, 1042 (1975).
- 28.
See: Edward F. Sherman “Transnational Perspectives Regarding the Federal Rules of Civil Procedure” 56 J. Legal Educ. (2006) 510, 511; also see: Dodson, Ala. L. Rev. id. at pp. 148.
- 29.
See: Hazard & Dondi, id. at p. 60–61.
- 30.
See: Mullenix, Vill. L. Rev, id. at p. 5; Richard L. Marcus “Putting American Procedural Exceptionalism into a Globalized Context” 53 Am. J. Comp. L. 709, 712–713 (2005).
- 31.
See fn. 4, id. For a more detailed discussion of the procedural virtues and deficiencies of the jury system see: Geoffrey C. Jr. Hazard “Jury Trial and the Principles of Transnational Civil Procedure” 25 Penn St. Int’l L. Rev. 499 (2006–2007).
- 32.
For the practical (and comparative) implications see: M.J. Leeming & G.J. Tolhurst “‘When You Got Nothing, You Got Nothing to Lose’: Assignment of Choses of Action and Standing in the United States Supreme Court” 8(2) Ox. U. Commonwealth L. J. 237 (2008); and cf. Tom Zwart “Standing to raise constitutional issues in the Netherlands” 6(4) Elec. J. Comp. L. (2002).
- 33.
On this and for a comparison of standing requires in the European court with other regional supranational courts see: Mariolina Eliantonio & Haakon Roer-Eide “Regional Court and Locus standi for Private Parties: can the CJEU Learn Something from the Others?” 13(1) The Law & Practice of Int’l Courts and Tribunals 27 (2014); also see: Henry Onoroa “Locus standi of individuals and non-state entities before regional economic integration judicial bodies in Africa” 18(2) African J. of Int’l & Comp. L. 143 (2010).
- 34.
See: Mullenix, Vill. L. Rev, id. at p. 6; Edward F. Sherman, id. at pp. 522–523. Also see: Alessandra De Luca “Cost and fee allocation in Italian civil procedure” 29(4) C.J.Q. (2010) 428; James Maxeiner “Cost and Fee Allocation in Civil Procedure” 58 Am. J. Comp. L. (2010)195. For a comparative economic analysis of the ‘American’ and ‘English’ rules see: Amy Sedgwick “There are more ways than one to allocate legal costs” 32(2) C.J.Q. 300 (2013).
- 35.
See: Mullenix, Vill. L. Rev, id. at p. 6–7; Samuel Issacharoff & Geoffrey P. Miller “Will Aggregate Litigation Come to Europe” 62 Vand. L. Rev. 179, 180 (2009) (reporting of European reformer’s hope that “that collective actions, representative actions, group actions, and a host of other aggregative arrangements can bring all the benefits of fair and efficient resolution to disputes without the dreaded world of American entrepreneurial lawyering.”)
- 36.
See: Mullenix, Vill. L. Rev, id. at p. 7; Dodson, Ala. L. Rev. id. at p. 146.
- 37.
See: Mullenix, Vill. L. Rev, id. at p. 7.
- 38.
See: Mullenix, Vill. L. Rev, id. at p. 7.
- 39.
See: Richard L. Marcus, id. at 725–729.
- 40.
See: Edward F. Sherman, id. at pp. 513–514.
- 41.
See: Mullenix, Vill. L. Rev, id. at p. 8.
- 42.
See: Mullenix, Vill. L. Rev, id. at p. 5–6 (cite: p. 6); Dodson, Ala. L. Rev. id. at p. 144; and see, in more detail: Scott Dodson & James M. Klebba “Global Civil Procedure Trends in the Twenty-First Century” 34 B.C. Int’l & Comp. L. Rev. 1, 3–8 (2011). For a historical and comparative analysis of pleadings in the United States and Australia see: Elizabeth Thornburg, Camille Cameron “Defining Civil Disputes: Lessons from Two Jurisdictions” 35 Melb. U. L. Rev. (2011) 208.
- 43.
See: Remme Verkerk “Comparative aspects of expert evidence in civil litigation” 13 Int’l J. of Evidence & Proof 167 (2009) (focusing on Austrian law); Hazard, 49 Sup. Ct. L. Rev., id. at p. 662.
- 44.
See: Mullenix, Vill. L. Rev, id. at pp. 9–13.
- 45.
See: Mullenix, Vill. L. Rev, id. at p. 11.
- 46.
Describing the deliberations that led to the ALI/Unidroit Principles (discussed below) in which he took part, Prof. Neil Andrews says that “[i]t was apparent throughout the drafting group’s discussion that there were radical differences between the USA and English systems, and between the various civil law jurisdictions represented around the table. These differences make a nonsense of both the glib phrase ‘Anglo-American procedure’ and the crude expression ‘civilian procedure’.” See: Neil Andrews “Chapter 2: Principles of Civil Justices” 10 IUS Gentium 25, 41 (2012).
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Seidman, G.I. (2016). Comparative Civil Procedure. In: Picker, C., Seidman, G. (eds) The Dynamism of Civil Procedure - Global Trends and Developments. Ius Gentium: Comparative Perspectives on Law and Justice, vol 48. Springer, Cham. https://doi.org/10.1007/978-3-319-21981-3_1
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