On the Meaning of 'System' in the Common and Civil Law Traditions: Two Approaches to Legal Unity

• Author: René Brouwer
• Position: Assistant Professor at Utrecht University, NL
• Pages: 45-55

René Brouwer, ‘On the Meaning of ‘System’ in the Common

and Civil Law Traditions: Two Approaches to Legal Unity’

(2018) 34(1) Utrecht Journal of International and European

Law pp. 45-55, DOI: https://doi.org/10.5334/ujiel.451

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

W

RESEARCH ARTICLE

On the Meaning of ‘System’ in the Common and

Civil Law Traditions: Two Approaches to Legal

Unity

René Brouwer*

In this paper, I oer an analysis of the dierent understandings of ‘system’ in connection with

the two main Western legal traditions. In the continental ‘civil law’ tradition, ‘system’ is used in

relation to the substance of the law, whereas in the English ‘common law’ tradition ‘system’ is

rather used in relation to the functioning of the law, in the sense of nding solutions to legal

problems that are consistent with earlier ones. I explain these dierent uses from a historical

point of view: in the civil law tradition the notion of system goes back to the exposition of

substantive legal doctrine, which – under the inuence of Stoic thought – was already developed

by lawyers in the Roman Republic, and for the rst time elevated to statute by the Byzantine

Emperor Justinian, whereas in the common law tradition the Byzantine-Roman organisation was

not taken over, and system rather connotes with the manner in which conicts can be resolved

on a case-by-case manner, and hence has come to refer to the machinery of law. These dierent

meanings may pose a challenge where legal unity is sought between jurisdictions that belong

to dierent traditions.

Keywords: system; Stoicism; Roman law; civil law tradition; common law tradition; legal unity

I. Introduction

In this paper I offer an analysis of the different understandings of the notion of system in the two main

Western legal traditions, which due to colonialism have spread out over the rest of the world.1 I will do so

from a historical point of view, in two ways: first, with regard to the meaning of ‘system’ as such, and, sec-

ond, with regard to the application of the notion in the two traditions. Once again, as in my other work on

pivotal notions in law, the simple, but fundamental point will be that understanding the origins of legal

notions is relevant for making sense of the present, such that informed judgments can be made about the

future.2

* Assistant Professor at Utrecht University, NL. Contact: r.r.brouwer@uu.nl.

1 On the legal traditions see K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998), the

standard work; Thomas Lundmark, Charting the Divide between Common and Civil Law (OUP 2012), who downplays the differ-

ences; Paul Brand and Joshua Getzler, Judges and Judging in the History of the Common Law and the Civil Law (CUP 2012), an edited

volume, which leaves out antiquity; H Patrick Glenn, Legal Traditions in the World (5th edn, OUP 2014), an engaging overview of

different legal traditions, including those of the civil and the common law; Mary Ann Glendon, Paolo G Carozza, and Colin B Picker,

Comparative Legal Traditions in a Nutshell (4th edn, West Academic Publishing 2016), a useful overview. A different approach in

which the resemblances between the traditions emerging between the 16th and 19th centuries are stressed is Gino Gorla and Luigi

Moccia, ‘A “Revisiting” of the Comparison between “Continental” and “English Law” (16th–19th Century)’ (1981) 2 Journal of Legal

History 143.

2 On justice see ‘Aristotle on Justice in the Ethics and Politics’ In: Emma Cohen de Lara and René Brouwer (eds.), Aristotle’s Practical

Philosophy: On the Relationship between His Ethics and Politics (Springer 2017), on equity see ‘On Law and Equity: the Stoic View’,

(2011) 128 SZ 17–38, on rights see ‘Over de klassieke oorsprong van de rechten van de mens’, (2011) 40 NJLP 98, on persons

‘Funerals, Faces and Hellenistic Philosophy: On the Origins of the Concept of Person in Rome’ In: Antonia Lolordo (ed.), Persons

(OUP forthcoming), and on constitutions ‘“Richer Than the Greeks”: Cicero’s Constitutional Thought in Republic 1’ In: O Höffe

(ed.), Ciceros Staatsphilosophie (De Gruyter 2017). For my work on notions that go beyond law, but with implications for law, such

as wisdom, sympathy and cosmopolitanism see The Stoic Sage: The Early Stoics on Wisdom, Sagehood and Socrates (CUP 2014) and

‘Stoic Sympathy’ In: Eric Schliesser (ed.), Sympathy (OUP 2015) respectively.