Hey, this is familiar!
The Cult of the Common Law is centered in that fusion of public and private law that seems so peculiar to persons trained in European legal systems. My suggestion is that the successes of Anglo- U.S. public law have given an aura to our courts and our legal system that protects the system whenever criticism is directed toward serious shortcomings in the procedures and institutions that handle routine matters of private law and criminal law. Implicit in the Cult of the Common Law is the contention that the legal system is an indivisible package ... and that any tampering with this complex structure risks the political liberties that have been historically associated with the Anglo-American legal systems. Expressed in this way, the Cult of the Common Law is profoundly chauvinistic and reactionary. It seizes upon the relatively precocious development of constitutionalism in the Anglo-American legal tradition, and uses that as a shield against criticism based on foreign example. Again and again in discussions about the shortcomings of the contemporary legal system I find that when I draw upon foreign example, that I am met with responses such as, “Before you go on telling me any more about the virtues of German civil procedure, please explain why they had Hitler and we did not.”
~ John H. Langbein
The Cult of the Common Law is centered in that fusion of public and private law that seems so peculiar to persons trained in European legal systems. My suggestion is that the successes of Anglo- U.S. public law have given an aura to our courts and our legal system that protects the system whenever criticism is directed toward serious shortcomings in the procedures and institutions that handle routine matters of private law and criminal law. Implicit in the Cult of the Common Law is the contention that the legal system is an indivisible package ... and that any tampering with this complex structure risks the political liberties that have been historically associated with the Anglo-American legal systems. Expressed in this way, the Cult of the Common Law is profoundly chauvinistic and reactionary. It seizes upon the relatively precocious development of constitutionalism in the Anglo-American legal tradition, and uses that as a shield against criticism based on foreign example. Again and again in discussions about the shortcomings of the contemporary legal system I find that when I draw upon foreign example, that I am met with responses such as, “Before you go on telling me any more about the virtues of German civil procedure, please explain why they had Hitler and we did not.”
~ John H. Langbein
3 comments:
I could totally write a piece on European civilian systems with the same rhetoric as a kind of contrapositive, but I'm a little more calm than he was when he wrote that.
No thanks to you :)
PS: it's a funny rhetorical position which condemns a black-and-white, there-is-right-and-there-is-wrong system by calling that system wrong :)
GODDAMMIT READ IT!
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