Comparative civil justice

The civil justice system of every modern state presents a tapestry of intertwined threads. The resulting image reflects the laws providing for redress of selected grievances, the remedies available to the aggrieved parties, the institutions available for resolving disputes, and the processes followed by those institutions. All of these are informed by the fundamental elements of the society—its political system, its economic arrangements, and its culture. In this chapter we are concerned primarily with dispute-processing institutions. All modern states have established judicial systems designed to accomplish the basic tasks of finding the relevant law and applying it in an efficient and fair manner to the actual facts underlying the dispute. The differences among them are about how to achieve these goals. We shall describe significant features of modern systems, discuss the difficulties of categorizing them, and try to account for the differences among them by looking at broader issues of politics, culture, and history. We close with some observations about the future of procedure in an ever-globalizing world and of the challenges for procedural comparatists. Before we parse the varieties of disputing in the modern world, we alert the reader to the tunnel-vision dangers of assuming that ‘official’ dispute institutions tell the whole story. Even in the most ‘officialized’ countries, informal systems, usually grouped under the catch-all heading of alternative dispute resolution or ‘ADR’, supplement the formal, court-based processes. Still more is this the case in those societies that have yet to succumb completely to modernity. As Werner Menski powerfully reminds us, large groups of people are still at least partially, or even predominantly, oriented towards traditional ways of thought and living. Taking a different path, H. Patrick Glenn argues that the informal law of the less developed world (what he calls ‘chthonic’ law) is but one of several—perhaps many—legal traditions, including the Talmudic, Islamic, Hindu, civil law, and common law. The dispute processes, or ‘civil justice’ (as we might call it) of each of these traditions largely mirror the world views of those who are steeped in them. As we explore the similarities and differences among the dispute processing systems of modern legal traditions we are struck by the simultaneous resilience and mutability seen everywhere. Glenn rightly emphasizes the capacity of legal traditions to maintain an essential integrity while absorbing the learning of others. ‘The interdependence of complex traditions is evident both from the difficulty in defining the starting points of major legal traditions . . . and by the ongoing, major forms of communication and debate between complex traditions.’ This suggests the difficulties of placing particular countries in one or another tradition or, as René David and John E. C. Brierley prefer to call them, ‘legal families’. One of the most interesting tasks facing the contemporary procedural comparatists is that of at once respecting and challenging the traditional taxonomies. What are these taxonomies and what are their distinguishing features? The world’s modern legal systems are for convenience usually divided into two major groupings, the ‘common law’ and the ‘civil law’ countries. The common law family includes England (whence it arose), Australia, Canada, India, the United States, and other countries with historic ties to England. Most other countries share the civil law tradition, which traces its earliest origins to the Roman Empire but then spread throughout continental Europe by virtue of the influence of the great European universities, beginning with the university of Bologna in the eleventh century, and the Catholic Church and its ecclesiastical processes. The adoption of a procedural system based on civil law concepts may be the result of prior colonialism (as with Latin America) or conscious adaptation from foreign systems (as with China, Japan, South Korea, and Russia). Although there are significant differences in the historical development and styles of legal reasoning between the common and civil law systems, most important for this chapter are the differences in the rules that govern disputes in court.

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