Legal actors do not think the same way in the common law world as they do in the civil law world. I don’t mean that they have thoughts and opinions of their own, I mean that their thought processes differ by virtue of how these two legal traditions look at their sources of law.
While common lawyers are masters of induction, civil lawyers are masters of deduction. Where common lawyers see a need to focus on facts, civil lawyers see a need to focus on statute. In law school, our brains are rewired to look at the world differently and this explains why we argue cases the way we do and ultimately why we write the way we do. It also explains why there’s often no translation equivalence between countries in the two legal traditions, but we’ll work our way up to that over the next few posts. For now, let’s keep it simple and start with how our brains are rewired.
When we think of what differentiates common law countries from civil law countries, we often think of codification. The civil world is codified, the common world is judge-made. But what does that really mean?
What it means is we look at our sources of law differently. And that inevitably leads us to look at and use the law differently.
While both legal traditions have primary and secondary sources, what we place in each category differs as much as the weight assigned to each source.
In the common law world, primary sources are the actual law in the form of constitutions, administrative rules and regulations, statutes, and court cases, while secondary sources are those that restate the law while also discussing, analyzing, describing, explaining, or critiquing it. In other words, primary sources are the actual law itself (the thing that we enforce) and where we go to find the law expressed in language. Meanwhile, secondary sources are those that restate the law while also discussing, analyzing, describing, explaining, or critiquing it. They are basically what we use to locate primary sources of law. Secondary sources are also what we use to define legal words and phrases, or to guide us in legal research. In short, they’re where we go to interpret the language of the law.
In contrast, the civil law world, regardless of subgroup (i.e. Napoleonic, Germanic, Nordic, and Chinese) has sources of civil law that can basically be expressed in three categories: legislation, custom, and general principles of law.
So what does this mean in practice?
Because the common law tradition is judge-made law, it relies mostly on induction. So before deciding a case, judges in the common law tradition have to look at cases their own court has ruled on that are of a similar nature or similar cases that have been ruled on by a superior court and then from those particular cases they have to extract general rules that they then apply to the case before them. This method of reasoning parts from particular premises to induce general rules and is called the Inductive Method. And inductive reasoning can look like this:
Premise 1: In case A, elements X, Y and Z were present and the plaintiff won.
Premise 2: In case B, elements X, Y and Z were present and the plaintiff won.
Premise 3: In case C, elements X, Y and Z were present and the plaintiff won.
Conclusion: In all cases where elements X, Y and Z are present, the plaintiff should win.
As opposed to their common law counterparts, civil law judges rely more strongly on deduction because they have to decide cases according to the law expressed in the code. So they part from general premises or facts of the case and, by way of deduction, they then subsume (this is a technical term) those premises or facts within the law. The logical-linguistic method of reasoning that parts from general premises or facts to deduce concrete applications or consequences is known as the Deductive Method. And deductive reasoning can look like this:
Premise 1: Murder is the unlawful killing of a human being with malice aforethought.
Premise 2: Joseph shot and killed Henry.
Premise 3: Joseph had no lawful justification or excuse to kill Henry.
Premise 4: Henry is a human being.
Premise 5: Joseph killed Henry with malice aforethought.
Conclusion: Therefore Joseph is guilty of murder.
Interestingly, while the conclusion of a deductive argument is characterized by its certainty, the truth of the conclusion of an inductive argument can be probable. As a result, the language, tone, structure, and even writing style associated with each system will be different. And translators will need to make tough choices when deciding what to capture and what to gloss over in translation.
In my next post, I’ll show you how this relates to translational equivalence. Sign up here and never miss a post.