When I was reading contracts law this evening, I suddenly found another angle to dig out the answer to a classic question: What is the difference between a civil law system and a common law system? This angle is especially interesting when it can be connected also with the cultural perspective.
The general statement about the fundamental difference of two systems involves the binding effect of case law and statutes. We can allow ourselves to be more intuitive and sense that the broad feeling is to apply case law and statutes. Basically, in the US system, the application is looser than in China. “Loose” means that what case rulings can be applied and how a case shall be argued varies a lot, depending on lawyers and courts. Meanwhile, in the Chinese system, the statute is standing right there. It is a hard threshold to overcome.
Even in terms of studying law, this loose feeling exists as well. When I am trying to understand the rule of consideration in contracts in the US, I have to go over cases in England, pass certain bad laws along the way, and end up somewhere very similar to what Chinese statute states in one or two provisions. It may make me mad to “waste” all that time. While in China, I just have to refer to Chinese contract law to find the definition of consideration.
The loose/strict intuition may lead to another difference: efficiency. In the US system, due process can be extraordinarily long, while in today’s China, no matter how theoretically due process is supposed to be prioritized, citizens and even courts still emphasize greatly the substantive law.
Interestingly, in the perspective of culture, the loose/strict difference may have an adverse effect. In the US, people might not be able to refer to certain written documents immediately if any dispute arises. However, they are mostly able to hold several common principles. In China, people know exactly what kind of law they should refer to. But oddly, what they resort to is often not primarily strict law, but loose relationship.
Anyway, there are fields of law where these differences don’t much matter, such as in international law, where practitioners are focused on primary questions like whether soft law is law. There is no better place to study international law than New York. The International Law Association’s International Law Weekend on October 24-26 was an event not to be missed.
This year’s panels covered hot issues like “Big Data: The End of Privacy or a New Beginning?”; classic topics like “Private International Law: Year in Review”; practical issues such as “Pathways to Employment in International Law”; and idealistic forays like “Complexities of Regulating the Outer Space Domain by Analogy to Legal Regimes in the Other Four Domains.” As informative as my coursework reading has been, there’s no better way to learn about international law than interacting with the experts.