Civil Law and Common Law Procedures: Which is the More Inquisitorial? A Civil Lawyer's Response

Abstract

In the international world, and sometimes in the domestic one as well, lawyers tend to live on comfortable but unchecked assumptions. I have regularly been faced over the years with the following statement, usually uttered, for some unknown reason, by elderly ladies: ‘My father, who was a solicitor, always told me that on the continent the accused was presumed to be guilty and had to prove his innocence, whereas in England the accused is assumed to be innocent unless he is proved guilty’. Strangely I have never been told the same thing by offspring of the other branch of the legal profession. Another such assumption is the widespread opinion that civil procedure in Civil Law countries is inquisitorial, whereas this popish inheritance has been healthily rejected by Common Law countries, whose procedure is purely accusatorial. As with many such trenchant generalities, this proposition is to some extent correct, but, in my humble submission, to a greater extent incorrect. It is the advantage of a discussion such as this that it gives us an opportunity to try to present things as they are, and the best way to do this is to compare them from a practical point of view. My first remark is that there is no such thing as ‘ Civil Law procedure ’ in civil and commercial litigation. In Common Law countries, there are undoubtedly certain common basic principles of procedure, which go back to the procedure practised in the English Courts. In continental Europe, there is no such common origin. In each country, one finds a different blend of civil procedure, largely influenced by local custom, the legal education received by judges and by counsel, and, to a varied extent, by the influence of the procedure practised in the old ecclesiastical courts, although such courts were abolished, …