Is the European Court of Justice a Common Law Court?

By: Charles Lincoln

This seems like a simple question. The way to answer it is what is a common law court and what is a civil law court.

Well, it’s complicated.

Because English common law is a thing and so is civil law. Thing is the right word because English common law developed from the communal notion of “things” whereby representatives in an Anglo-Saxon community would congregate to discuss an issue.

I had an extensive discussion for an hour with a Spanish Ph.D. student, two German Ph.D. students, and one Dutch Ph.D. student about what common law is. Also, a German law professor was present after a while. They all opposed the idea that the European Court of Justice is a common law system. However, we had this conversation for a reason. It does seem to have elements of common law. The German professor said that common law is based on facts but civil law is based on rules. But the thing is that both common law and civil law are related to both. Moreover, I found out that old German law was actually judge-made common law So the conversation goes on.

Yes, I discussed the Code of Justinian as well in my presentation. The thing is that civil law is based on Justinian’s Code. But Justinian’s Code (at least the part that codified former rules called the Digest) is actually just a summary of Judge-made law in Roman times.

So, the thing is that Roman law is really based on the linguistic changes in Indo-European languages evolving. Just as Homeric-style poetry permeated regions from India to Greece, so did judicial rulings. The rules in Plato’s laws linguistically parallel the rules in India.

Law itself can be defined in many ways. It is not just a command from an authority. That might encapsulate the idea of criminal law and even provide a decent definition of criminal law. But what about contract law? Contract law is the agreement between two individuals to do something that is not commanded by a sovereign or a group collected. Indeed, you could argue that the sovereign or a parliament recognizes certain rights under contract law — that is to say, if you do a certain amount of things and form a contract by certain governed rules, then the courts will enforce it.

It’s a tangential and stretched argument to say that if you voluntarily sign a contract, then you are forced to follow it. Yes, if you engage in a voluntary agreement with all the indicia of a contract, then there will be a certain level of consequences for not following it. I am just using this as a contrast to Jeremey Benthem’s and John Austin’s legal philosophy of positive law. HLA Hart uses the concept of contract law to differentiate between the criminal mandates of the “sovereign” and other types of law such as contract law. Also, it is unclear whether torts and tortious rules are really commanded by the sovereign. They are certain representations of the collective agreements in society to protect rights or enforce certain rules, such as defamation (that we see in Hollywood trials a lot), or assault and battery in the civil law tort context.

Sub question — are the laws of humanity related to the laws of physics?

Laws in a scientific sense are constantly up for debate. Newtonian physics was fundamentally changed by Einstein. Indeed, we do not always know when we have had a monumental change. Remember, when Galileo’s theories were being presented, there were many scientists who tried to maintain the old Ptolemaic system of investigation into the movements of the universe. So the question is, have we had a Galilean revolution in physics, or are the current theories of string theory and a “theory of everything” just attempts to maintain the old system? We may not know until later. likewise, I think this analogy holds in the law.

There is a commonly conceived notion of law. Law developed from linguistic patterns existing in certain linguistic groups. In the Indo-European chain of languages, the laws developed by various Indo-European linguistic groups initially resemble each other. Then, over time, each branch became distinct. In the Latin and Greek branches, judges made law. This was ultimately codified under the supervision of Justinian into the Code of Justinian. The European polities adopted these rules and then again had judges interpret this law. But the Code of Justinian was just a codification of judge-made law — in other words, common law. Thus, over time civil law became common law. But in Common law countries, such as the US, many of the rules have become codified into statutes. So the question becomes, what is common law? Do judges make law or do they interpret gaps in the law?

The laws of physics may exist outside human consciousness (though that’s a big “maybe” statement from Kantian thought and Hume’s analysis). Moreover, it is a human assumption that the world operates according to basic rules and consistency. There is no other proof that everything is chaotic. You just have inductive reasoning — that is to say, reasoning from experience — that at this point in time suggests that we are in a universe that is governed by consistent rules. Indeed, this was pointed out in Plato’s Timaeus. Without this presumption in the Timeaus, modern science could not occur. But we take it for granted that science can occur based on regular and sustainably observable rules.

The last word on the issue:

I’ll leave the last word on the issue for now with a Harvard Law Review article footnote from 1976 discussing the research of linguist Calvert Watkins:

“Professor Calvert Watkins traces the practice of spontaneously executing manifest thieves to Hindu and Greek, as well as Roman law. See Watkins, Studies in Indo-European Legal Language, Institutions, and Mythology, in INDO-EUROPEAN AND INDO-EUROPEANS 321, 342–45 (G. Cardona ed. 1970); cf. PLATO, THE LAWS ¶ 874 (“He that slays a thief entering the house by night with intent of robbery shall be guiltless.”). Watkins’ thesis, substantiated by linguistic as well as legal analysis, is that there is a prototypical form of Indo-European larceny. For comparative discussions of the similarities of Biblical and Roman approaches to manifest thievery, see generally D. DAUBE, STUDIES IN BIBLICAL LAW 235–305 (1947).”

• George Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469, 530 (1976).

I might want to venture some explanation from my perspective on this. The notion of “guiltless” from the quote above refers to what we now call mens rea. Mens rea is one of the most difficult concepts in criminal law. Ostensibly, it seems simple — it is the mental state of the person. But what is the mental state of a person? How can we accurately define and determine what someone’s mental state is at any time — much less in the last when a fact-finding tribunal is trying to understand what occurred in a specific incident? The key may be in linguistic patterns of interpretation — not only in English but in other existing and currently “dead” languages as well.

Such an exploration would mean exploring the grammatical and tense structures of other languages. Language and words are the best representation we have to extend the outward manifestations of our inward minds.

It’s worth ending with something that is not exactly on point but is commonly discussed in linguistic circles:

“The Sanscrit language, whatever be its antiquity, is of a wonderful structure; more perfect than the Greek, more copious than the Latin, and more exquisitely refined than either, yet bearing to both of them a stronger affinity, both in the roots of verbs and the forms of grammar, than could possibly have been produced by accident; so strong indeed, that no philologer could examine them all three, without believing them to have sprung from some common source, which, perhaps, no longer exists; there is a similar reason, though not quite so forcible, for supposing that both the Gothic and the Celtic, though blended with a very different idiom, had the same origin with the Sanscrit; and the old Persian might be added to the same family.”

— William Jones

© Charles Edward Andrew Lincoln IV