By: Thomas Nighswonger (Tilburg Debating Society Cicero)
In this article, I discuss the trade-off between common law and civil law. This was the topic of debate during round 5 of the Eindhoven Open 2020.
Infoslide: In a civil law system (like in the Netherlands, Germany and France), the law is primarily made by parliament. Judges apply and interpret it but generally try to keep as close to it as possible. In a common law system (like the UK and US), the law is primarily made by judges. They formulate generally applicable rules based on individual cases, which they base on what is common and what is perceived as just.
Motion: This House prefers a common law system over a civil law system.Round 5 – Eindhoven Open 2020
For me as a law student, this is an excellent motion as I am familiar with both systems, so I knew beforehand what potential arguments to expect. I also think the motion is quite balanced, although closing teams might have a bit of a struggle finding a nice extension.
On the proposition side, the main arguments the teams brought up was that judges need to be independent of the rest of the political system. They should not be subject to public scrutiny or public opinion. In the common law system, the judges hold the position as the prime lawmaker, using a system of binding precedent. Judges can only fulfil these duties to the best of their abilities if it is ensured that they are completely independent. If they were not independent, they could not fulfil their roles to the best of their capabilities. Instead of shaping the law the best way they think, they would worry more about the popular opinion and the repercussions a ruling that would be deemed unfavourable would have. This might lead to rulings that are unfavourable for certain groups in society, e.g. minorities in the sense that they are less protected by the law. The crux is, the judges would not have come to that decision because it’s what they think is right, but because of the potential backlash from society. Thus, rather than making a “good” law, they obey to the popular opinion.
On the opposition side, you can raise the question of why judges should make and shape the law instead of the popular sovereign. The people vote for their representatives who should be in charge of making and shaping the law. Adding to this, the representatives are more likely to be a better representation of the population, as judges often times come from the elite members of the society, thus having an elite society law-making body instead of more diverse lawmaking from within parliament.
Of course, this only scratches the surface of what one might talk about and surely needs more explanation, but it gives you a general idea of what potential arguments to think about.