The Importance of Legal Starting Points

There are differences in the bodies of private law in different system. Most European systems, such as those of France, Germany, Italy, the Netherlands and Spain, have a Code and are based on principles derived originally from Roman law. On the other hand there are also those systems which have some Roman law ideas, but are more marked by their focus on adjudication and the role of litigation, and these are called common law systems. The common law was a creation of the English and Welsh, and as such is dominant in former English Colonies (e.g. the USA, Canada, Australia, New Zealand, Ireland, Hong Kong). How these bodies of legal rules and principles are laid down affects the scope for judges to take account of changing trends in social ideas.

Codes provide obligatory starting points for legal arguments, and any interpretation of the law must be consistent with them. Judges have greater or lesser freedom depending on how the civil code is drafted. The French Code of 1804 has very general principles, but the German Code of 1900 is more specific, and limits some of the scope for judicial flexibility. The later codes in Italy and the Netherlands often resolve modern problems specifically.

By contrast, the common law will consist of specific cases or statutes, and the law is made into a system by the textbooks, rather than by codes. But judges are the principal people who are developing this law, and so textbooks have to be faithful to the current trends among judges.