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International Law Part Four: Common Law Influence in a Civilist Jurisdiction

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Written by Guest Blogger Kenneth Suria

In today’s legal structures, most nations follow one of two major systems law: the civil law and the common law. Civil law is generally codified, while the common law is not. This means that countries that follow the civil law system have comprehensive legal codes that specify all matters capable of being brought in court, including their procedures and applicable penalties. On the other hand, jurisdictions that follow the common law system do not possess a comprehensive compilation of rules and statistics since it is based mostly on judicial precedent. This system, however, does have some scattered statutes that may provide some guidelines, but it relies mostly on stare decisis, decisions in past cases .

While history allowed for the separate development of these systems, in modern times it has also permitted both systems to co-exist within the same jurisdiction. As a result, the legal system in some of these countries has become hybrid, referred to as a mixed jurisdiction. Professor Robin Evan Jones, in his article “Receptions of Law, Mixed Legal Systems and the Myth of the Genius of the Scots Private Law,” 114 L.Q.R. 228(1988), defined a mixed jurisdiction as “a legal system which to an extensive degree, exhibits characteristics of both the civilian and the English common law tradition.” Not surprisingly, jurisdictions with mixed legal systems exist within the United States. The State of Louisiana and the Commonwealth of Puerto Rico bear the honor of that distinction within the American system of jurisprudence. The former boasts the tradition of the French Napoleonic Code, while the latter features the Spanish Civil Code.

With regard to Puerto Rico, despite the traditional notions of civil law’s distinct approach to total reliance on codes and statutes, due to the American influence of case-by-case analysis and the law school training of the Socratic method, common law analysis has become an important analytical tool in civilist decisions under the Civil Code. For instance, in deciding cases, judges initially focus on the language of a particular statute, its meaning, and the legislators’ intent. However, modern judges use a quasi-common law approach, in that they also look to past cases for consistency in the interpretation of sections of the Civil Code or other relevant statutes.

Another indirect aspect of common law influence civilist jurisprudence states is the prevalence of federal law. For instance, the U.S. Constitution’s Supremacy Clause makes clear that all United States laws, statutes, and treaties are the supreme law of the land. This means that the federal government, in exercising powers enumerated in the Constitution, must prevail over any conflicting or inconsistent state excessive power. In this regard, the Supreme Court of the United States held that the Supremacy Clause applies to Puerto Rico in P.R. Department of Consumer Affairs v. Isla Petroleum Corporation, et al., 485 U.S. 495 (1988). The effect of this type of decision caused a subtle yet unintentional acceptance of federal law as part of the civilist system. The rationale is simple because federal matters necessarily use the stare decisis doctrine in the interpretation of the U.S. Constitution and other federal statutes. Therefore, the next logical next step is to use the same analysis used by federal courts locally in the interpretation of local statutes.

To conclude, federalism has helped the common law influence the manner in which judges in a civilist jurisdiction analyze and enforce the law.

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