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

Abstract

In this paper, I offer an analysis of the different 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 finding solutions to legal problems that are consistent with earlier ones. I explain these different 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 influence of Stoic thought – was already developed by lawyers in the Roman Republic, and for the first 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 conflicts can be resolved on a case-by-case manner, and hence has come to refer to the machinery of law. These different meanings may pose a challenge where legal unity is sought between jurisdictions that belong to different traditions.