Book Review: The Civil Law Tradition

The Civil Law Tradition by John Henry Merryman and Rogelio Pérez-Perdomo is excellent background reading for translators in any language combination crossing the civil–common law divide.

Aimed at readers familiar withthe_civil_law_tradition common law, it may provide into-English translators some ideas for translating civil-law concepts into English.

And it’s nice to read something authoritative in English about civil law that’s not a translation! I’m obviously not against translations, but with a book like this — written by an expert in their native tongue — you can be sure of the authenticity of the language if you do come across an interesting way of expressing a civil-law concept in English that you might like to use in a translation.

The authors warn that the book is “for amateurs, not professionals”. It is, after all, an introduction. I, at least, a non-expert with some understanding on the topic, got a more complete picture of civil-law systems and how they work from reading it.

And while the book is primarily about civil law, you could also nearly read it to get a rundown of common law as the constant comparison of the two traditions helps to put aspects of common law into perspective.

The book doesn’t focus or any particular system, although more attention is paid to the French and German systems owing to their significant and contrasting contributions to civil law.

We have not attempted to describe any existing civil law system. Rather, we have sought to describe certain powerful historical events and currents of thought that have deeply influenced the growth of contemporary civil law systems and that give form and meaning to the legal rules, institutions, and processes that make up those systems. p. 143

So while, for instance, the legal system I’m interested in, Spain’s, is not mentioned often, a lot of the characteristics and dynamics discussed in the book are applicable to the Spanish system.

As well as describing the history and main elements of civil-law systems (i.e., procedure, legal professions and concepts), the book dispels common myths about civil law (e.g., no judge-made law and no presumption of innocence) and nuances some preconceptions (e.g., civil law is 100% codified and civil-law proceedings are inquisitorial).

The current trends and challenges facing civil law (i.e., decodification, constitutionalisation, EU federalism and the transfer of legislative power to the executive and judges) are also touched upon.

The authors acknowledge the overlap, exchange and borrowing between civil-law systems and even between civil and common law, making the point that the two traditions have and are converging — particularly in procedural law — through the adoption of the desirable elements of the other tradition to mitigate own “abuses and excesses” (e.g., public prosecutor in common law and more open and transparent proceedings in civil law).

No attempt is made to assess which tradition may be better or more just, although I do like the following comment with regard to criminal proceedings:

In the end, a statement made by an eminent comparative scholar after long and careful study is instructive: he said that if he were innocent, he would prefer to be tried by a civil law court, but that if he were guilty, he would prefer to be tried by a common law court. This is, in effect, a judgment that criminal proceedings in the civil law world are more likely to distinguish accurately between the guilty an the innocent. p. 133

Anyway, I thought it was a worthwhile read that wasn’t too taxing. Here’s a brief audio review on what’s in the book.

Stanford University Press’s link for the book

The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America by John Henry Merryman and Rogelio Pérez-Perdomo, 3rd Edition, 2007.

Written by Rob

Rob Lunn is a freelance legal translator based in Spain. He translates from Spanish and Catalan into English.

One comment to “Book Review: The Civil Law Tradition”
  1. Pingback: Training for legal translators. Part II. Where to start. – Rob Lunn Legal Trans

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