“. . . . Civil law is, if you like, a top down system, whereas common law is a bottom up system.  Civil law is based on a code which is founded on principles, theory and logic, which are combined into a comprehensive coherent system of legal rules, and that system is then applied by judges to individual sets of facts in particular cases.  Common law involves the judges developing the law on a case by case basis, and fashioning legal rules, not so much by reference to an overarching principle or set of principles, but by reference to the experience and the requirements of justice as assessed in the context of the facts of a particular case, albeit viewed by reference to the law built up by judges in previous cases. . . . .” [para 35].

Excerpts [footnotes ommitted]

From a fascinating speech delivered by Lord Neuberger at the Max Planck Institute in Hamburg on 9 July 2012 JUDGES AND PROFESSORS – SHIPS PASSING IN THE NIGHT?.

[36]   The difference between the common law and civil law systems can be seen in historical and philosophical terms. In epistemology, the theory of knowledge, there has been a continuing controversy between the empiricists and the rationalists.  The empiricists relate ideas, meaning, and indeed truth, to experience, whereas the rationalists relate such concepts to reason.  It is no surprise that the major empiricists were British – Hobbes, Locke, Berkeley, Hume – whereas the leading rationalists were from mainland Europe – Descartes, Spinoza, Leibnitz.  Francis Bacon, one of the British empiricists suggested that empiricists were “like ants”, in that “they collect and put to use”, whereas the rationalists, he said, were “like spiders; they spin threads out of themselves”.

[37]   It is scarcely surprising in these circumstances that English judges have historically had so much less regard for academic lawyers than their German counterparts. The academics have a substantial, presumably in many cases a predominant, input into the civil code on which judgments in a civil system are based.  On the other hand, at least in theory, there is no academic input into the formulation of the common law: it is built up by the judges.  The lifeblood of civil law is principle and logic, whereas the driving force of the common law is experience and common sense.  Scholars have a far greater role to play in relation to principle and logic, as opposed to experience and common sense.  (That is not to say that scholars have no expertise when it comes to experience or common sense – perish the thought.)

[38]   The advantages and disadvantages of the common law model may be seen through the lens of the career of perhaps its greatest judge, Lord Mansfield, Lord Chief Justice between 1756 and 1788. When he came into office, he found an ossified, outdated, rather unprincipled system of court procedure and of commercial law, both badly lagging behind their European counterparts.  Much of this can be attributed to the fact that lack of academic input and rigour, as well, I am afraid, as judicial complacency, had taken their toll over the past 150 years.  However, over the first fifteen years of his tenure, Mansfield showed what could be done in a case-based judicially driven system by an innovative, committed and practical judge.  One of the most prized jewels of our system over the past two centuries has been its commercial law, and Lord Mansfield almost singlehandedly brought it from a fairly hopelessly impractical state to being fit for purpose in fifteen years.  Indeed, he introduced a spirit into the common law which encouraged judges to ensure that the common law remained tuned into contemporary social and business needs and practices.

[39]   Interestingly, in modernising the common law, Mansfield drew a lot on mainland European concepts such as uberrima fides, thereby drawing the English ants into the mainland European spider’s web. With the European Communities Act 1972, pursuant to which the United Kingdom joined the EU, and the Human Rights Act 1998, which rendered the European Convention on Human Rights enforceable in UK law, the English ants have had to become more accustomed to coping with that web.  In my view, this has not only affected judges when deciding points of EU or human rights law: it has affected our thinking more broadly, making it more principle-based and rather less precedent-based.  This has given an added impetus to the undermining of the already crumbling resistance of the English judiciary to the citation of academic books and articles in court, and their refusal to treat such books and articles as authoritative.