Legal Lessons 101
The protagonist of my historical mystery series “Barrister Perris” is a trial attorney (who in England is referred to as a “barrister”). I’m not a lawyer and no, I don’t even play one on TV. So, to make sure I don’t make any felonious faux pas when I’m describing legal scenes, I’ve immersed myself in the study of law. Now and again, I’ll share some of the more interesting aspects of our legal system as I learn about them. (Those of you with legal backgrounds, feel free to correct me – I always want to be as accurate as possible!).
The first concept is the difference between English common law and “civil law,” which uses the Napoleonic Code.
“Stella!”
Remember the play and movie “A Streetcar Named Desire” when Stanley Kowalski, played by the incomparable Marlon Brando, bellows out his wife’s name? So iconic! But there’s another memorable moment when he self-righteously points out to his wife’s sister, Blanche Dubois, that “In the state of Louisiana we have the Napoleonic code according to which what belongs to the wife belongs to the husband and vice versa.”
I always thought he was bloviating, but he’s right. Louisiana in fact is the only state that uses “civil law” under the Napoleonic Code (which originated in France in 1804) rather than English common law, which reaches all the way back to the Norman Conquest in 1066. Today, English speaking countries and former English colonies practice common law while countries like France, Spain, Germany and Japan, practice civil law. Louisiana is the exception within the United States because of its French and Spanish colonial heritage.
There are several differences between the two forms of legal proceedings. Under Napoleonic civil law, for instance, the judge usually leads the investigation and applies the law. Juries in civil (i.e., non-criminal) trials are rare. But in English common law, the judge is an arbiter between the opposing sides of the case, for both civil and criminal trials. As a result, juries are used way more often under common law – they become the true judges, and the judge is more like a referee. (image of Judge Sir James William Blair courtesy of Wikimedia Commons).
The use of juries wasn’t always ideal, by the way. With the exception of a few court cases in Merrie olde England that used a “jury of matrons” (i.e., married women) for pregnancy-related matters, women weren’t allowed on either English or American juries in the early twentieth century – they were considered too emotional and weak-minded! But even the all-male juries provide a dramatic setting in which Jonathan and his colleagues Cordelia Hammersmith and Oliver Bean can match their wits against the opposition. I must admit, I’m looking forward to writing future stories that are set after 1911, when women (once they got the vote in California) were finally allowed to serve as jurists.
No doubt the most important difference between English common law and Napoleonic civil law is the very foundation upon which judicial decisions are based.
Under civil law, judges render their verdicts according to the written codes and statutes that have been imposed upon their jurisdiction. They already know the rules of the game and base their decisions on whether or not the defendant has broken those rules.
Under common law, however, judges interpret rulings made by previous judges and (most often) follow the precedents set by those who came before.
Why do common law judges rely so heavily on other judges’ rulings? It relates in part to the method of reasoning
they use. Napoleonic civil law follows the process known as “deductive” reasoning, in which a general rule exists and from that rule, the decision about a specific case is made. Conversely, English common law uses “inductive” reasoning, which means a new general principle or rule can be created from a specific set of circumstances.
Using deductive reasoning, for example, a general rule might be “Taking items from a grocery store without paying is stealing.” Joe Smith stole from the grocery store; therefore, the judge determines that Joe is guilty of stealing. The circumstances have been applied to the rule.
Now apply inductive reasoning to the same circumstance: Maybe Joe Smith ran inside the nearest store, grabbed some bandages and ran back outside to staunch the bleeding of someone who had been stabbed outside on the street. Technically he stole the bandages, yet because Joe was being a Good Samaritan, the judge might decide that he should not be considered a thief and therefore renders a new judgment based on the facts of that particular case.
Down the road, when a similar case pops up elsewhere, the new judge will look to see what the earlier judge had to say about the matter. Over time, such precedent turns into a massive amount of what’s called “case law.” It evolves along with society and is used to render most judges’ current decisions. In legal terms, the reliance on past decisions is called “Stare decisis,” which is Latin for “To rely on things decided.”
Before you call out “Objection!”, yes, there are exceptions, usually at our highest level of jurisdiction, the Supreme Court. Throughout our country’s history, the “Supremes” have found certain earlier decisions to be in error as they relate to our Constitution. When those judges change course, it makes headlines.
Each type of legal foundation has its pros and cons. The Napoleonic civil law approach relies on comprehensive rules; it tends to be straightforward and predictable. But changing the law can be cumbersome since it usually requires a legislative body to act. Common law, on the other hand, can be tricky, especially if judges use unreasonable methods to interpret the facts of a case or juries decide to ignore the law altogether. But only with common law can the solution to legal problems organically change with the times. I’m just glad Jonathan Perris practices law in California, which follows roughly the same common law structure as his native England. But who knows – maybe at some point he’ll travel to Louisiana, and then, all bets are off!
Sources: gertitashkomd.com, legalclarity.org, uslawexplained.com, getgordon.com
