SIX CONTRASTING AREAS

It may be useful for a better understanding of the unification debate to proceed to a more precise and technical analysis of the differences between the common law and what the famous com- paratist Rene David used to call the famille romano-germanique.

But first a word of warning about the Roman law of Antiquity and the Roman or civil law of medieval and modern Europe. It is a fact that European neo-Roman law is entirely based on the Roman law as recorded in Justinian’s Corpus iuris, but it would be a mistake to think of the classical Roman law of the great jurists, who worked centuries before Justinian put his commis­sion of jurists to work, as looking in any way like the treatises of Bartolus and Baldus or the Pandektenrecht of Bernhard Windscheid (d. i 892). On the contrary, the Roman law of the classical period is in many respects closer in character to the English common law than to the modern civil-law systems which are derived from the medieval schools. This is because both classical Roman law and the common law were developed through opinions and de­bates among experts, occasioned by particular lawsuits, rather than through general rules laid down by the legislator or the­ories produced by learned professors. Also in both cases legal development was centred around particular forms of action, i.e. the praetor’s formula and the chancellor’s writ. The modern civil law, in contrast, was based on university teaching and the aca­demic study of the text of the Corpus iuris; it was, in other words, not case-law but book-law. The civil law is derived from post­Roman (or at least post-classical) Roman law, whereas the early common law unwittingly retraced the steps of the latter.^[40]

Let us now proceed to the promised analysis of six differences between common law and civil law.