Common law stands in contrast to civil law in two major ways:

• Common law arose spontaneously and evolves continuously, while civil law is based on a specific code that does not depend on prior legal tradition.
• The interpretation of common law is in the hands of the judiciary, while the interpretation of civil law is ultimately in the hands of the legislature.

The majority of Muslim countries retain traditions of common or civil law from their days as European colonies, but Muslim law has lately modified these foreign traditions, in some cases beyond recognition. Judicial independence is not a characteristic of the Muslim political system, and the theory of the separation of powers is alien to Muslim tradition. The Koran expressly requires obedience to those who govern.

Previous scholarly studies have demonstrated a statistically significant relationship between political and civil liberty and economic growth. This study surveys legal systems in 167 countries and concludes that:

• Nonsocialist countries are significantly freer, in terms of both civil rights and the enjoyment of democracy, than socialist (Marxist) countries.
• Non-Muslim countries are significantly freer than Muslim countries.
• Common law countries are significantly freer than civil law countries (after excluding Muslim and Communist countries).
• Countries with an independent judiciary (rule of law) have substantially more liberty than those without such a judiciary.

Introduction

The grand issue in the structuring of a legal system is whether law should be based on common, fairly applied rules or on the will of the ruler. The debate over "rule of law" versus "rule of men" is with us as much today as it was in the distant past.2 In the Institutes of Justinian (533 A.D.), this sharp dichotomy of views on justice, law and the rights of man was recognized. Translating from the Latin: "Is justice a constant and perpetual aim granting everyone his own rights, or is it that which is pleasing to the person in power [that] has the force of law?"

Earlier studies have shown that there is a positive relationship between various measures of liberty and economic growth.3 The issue we examine here is the extent to which the characteristics of legal systems influence liberty. Based on a survey of legal systems in 167 countries, we conclude that the degree of individual freedom is greater under common law than under civil law and that freedom under Marxist-Leninist law and Islamic law is less than under civil law.4

Three Types of Legal Systems

Civil Law. Codified law governs non-English-speaking Europeans, their former colonies and many historically independent non-European countries. Among the latter, the German civil code was popular in Asia and adopted by a number of nations in the late 19th and early 20th centuries. More than half of the 167 countries in the sample analyzed in this study have a civil law system. Such law has a long history, with roots traceable to 450 B.C., the date of the Twelve Tablets of Rome. Roman law reached coherence in its first codification under Justinian, in 533 A.D.

In contrast to common law, which arose spontaneously and evolves continuously, codified law emerged discretely. The Justinian Code nullified all prior law in the interest of preserving the "purity" of Roman law. After the code was prepared, the use of any other commentaries was forbidden. Similarly, the Code Napoleon (1804) nullified prior law in the interest of the new bourgeois and revolutionary order. French law derives its validity not from prior legal tradition but from the act of codification. Under such a legal system, the legislature has a monopoly on the creation of law and individual rights. The protection of rights in a legal regime in which those who govern, even if they are of good will, have the power to grant, deny or modify rights typically is weaker than in a legal system in which the individual stands equal to the state before an independent judiciary.

The separation of powers doctrine exists in civil law countries. But judicial independence is much less meaningful. Judgeships in prerevolution-ary France were private property. Montesquieu inherited, held for a decade and then sold a judgeship. The thrust of codified law has been to make it as "judge-proof" as possible. The Code Napoleon contains 2,281 articles. Frederick the Great's distaste for judicial latitude was so great that the Prussian Landrecht of 1794 contains some 16,000 provisions.

"In civil law countries statutes cannot be overturned by judicial review."

Completeness and coherence, which give a legal system certainty, are illusions in a codified system of law. Human inventiveness erodes the legislative will expressed in the code. Ultimately, someone must interpret the code and fill in the gaps. France, followed by Italy and other nations, was inundated by requests for legislative (political) interpretation of the code and created the Tribunal of Cassation to quash incorrect court interpretations. The tribunal, a legislative body, evolved into the Supreme Court of Cassation, a judicial entity, whose function is to divine legislative intent behind statutes.

Codified law is only part of the legal system in countries following continental legal practices. Commerce, patents, copyrights, bankruptcy, insurance and other branches of law were omitted from the early codes. In fact, continental law is a hodgepodge of private law (civil and commercial) and public law (administrative and constitutional), each with its own courts, procedures and tribunal hierarchies. Disputes with the state are heard in administrative courts, where those who govern and administer judge their own conduct. In France, the review of the legality of an administrative act is the Council of State, an organ first established to advise monarchs.

In civil law traditions, statutes are not subject to independent judicial review. What guarantees individual rights in such political systems? Constitutions and the good will of the legislature are supposed to do so. Yet constitutions vary in the strength of their limitation on legislative power, and there is no provision for enforcing the limitation. Unlike the United States where, since Marbury v. Madison, the review of legislation is a judicial prerogative, constitutional review in civil law countries may be a nonjudicial process. In France, constitutional questions are settled by the Constitutional Council, a body composed of the former presidents of France and members chosen by the French president, the president of the Chamber of Deputies and the president of the Senate. While the authority for constitutional review rests differently in other civil law countries, the constraints on legislative power are much weaker than where constitutional questions are a judicial prerogative. Ultimately, in civil law countries liberty is at the sufferance of the legislature.

Common Law. Common law governs the United Kingdom and its former colonies. About a third of the countries in the sample analyzed have adopted the English common law tradition that can be traced to the Norman conquest of 1066 A.D. and a case casuistry beginning with the Year Books in the 13th century. One hundred fifty years of tyranny followed the Battle of Hastings. The Normans imposed and enforced a truculent penal code on the Saxons to guard Norman privileges. Tax collections on behalf of King John brought the English countryside to penury. Norman rule was broken when John was forced to sign the Magna Carta. Thomas Macaulay dates the English nation from the events at Runnymede in 1215. He wrote in History of England:

What features of the common law promote individual freedom? Equal protection and equal status of the litigants and strict judicial independence limit the coercive power of the state. Under common law, the people's interest is derivative from that of the harmed individual and, by extension, the individual's family, peers and society as a whole. Judicial proceedings are accusatory. (Until modern times, the office of prosecutor did not exist in England; the state hired a lawyer to represent the people's interest, against the defendant, who also hired a lawyer.) Trial by jury is guaranteed in civil as well as criminal proceedings. Trials are open and public.

Under codified systems, by contrast, legal proceedings are inquisitional, partially secret, multistage affairs. Those charged with crimes or infractions face the terrible power of the state, not a judge refereeing a contest between the accuser and the accused.

Independence of the judiciary implies more in common-law countries than the separation of powers doctrine implies elsewhere. Common law is broader in scope than civil law. Civil law is confined to the range of legal subjects of the first three books of the Institutes of Justinian (i.e., the law of persons, family, inheritance, torts, property, contracts and unjust enrichment). By contrast, what is lawful under common law rests entirely with the judiciary, whose views evolve slowly and are based on the principle of strict adherence to precedent (stare decisis). Where the British state chooses to intervene by statute (e.g., child labor laws, city planning and so on), a tradition of casuistry and precedent tends to result in the statutes' being more narrowly construed than on the continent. The British have been disinclined to overthrow 700 years of legal wisdom for a modern, if popular, vision. This evolutionary character of the common law protects and nurtures individual freedoms.

"The evolutionary character of common law protects and nurtures individual freedoms."

How Different Is Common Law From Civil Law? Some scholars assert that the differences between these legal systems and their implication for human freedom are more apparent than real, since they mainly share the Christian religion, constitutional government and capitalist, private enterprise economic systems.5 In this view, the rule of law is such a common cause of concern under both systems that other institutional differences are more curious than meaningful. After all, one is as free in developed countries with a common law tradition as in developed countries with a civil law tradition.

Perhaps! But three concerns about personal liberty are troubling, particularly in Third World nations without a tradition of judge-made law.

First, since the state is the source of all law, individual rights rest ultimately and convincingly with the state (albeit through a representative legislature in the West). Law by legislation can weaken individual rights in several respects. (1) The electoral process requires that politicians be responsive to the popular will. The time horizon of the popular will and those who represent it often is short and respect for individual rights often fleeting. As a result, the United States in recent times has spent more on public goods and social welfare than citizens are willing to pay in taxes. (2) Enormous opportunities exist for special interests to seek gains at the expense of the general public. These opportunities are enhanced by a legislative process characterized by majority voting, vote trading by legislators and rational political ignorance among voters. Modern government directly controls vast resources, and both resources and rights are increasingly allocated by the political process. (3) Legislation imparts uncertainty about rights, since one legislature is free to alter the law of previous rulemakers. Axiomatically, uncertain prospects are less valuable than certain prospects.

Second, the idea of inalienable rights, particularly regarding private property, seems to have diminished in the West in modern times. Some view rights less as a natural endowment than as legally protected interests. This makes rights subject to periodic legislative review. Rights are especially tenuous when new discoveries and innovations give rise to rights that could either be private or collective. For example, the doctrine of appropriation6 governed water rights in the western United States until the demands of urban development expressed politically through state legislatures led to their socialization.7 Historically, there were private property rights in the electromagnetic spectrum and case law was evolving to reconcile disputes over the exclusivity of a frequency until the government nationalized the electromagnetic spectrum in 1927 and politicians began to allocate the rights to specific radio frequencies. Few even questioned this socialization of outer space. Debate is raging over the right to patent genetic changes in plants and animals. Taxpayers are revolting against the notion that the state's right supersedes their right to the fruits of labor. High taxation and the forced substitution of public for private consumption are weakening individual liberty. Examples abound.

"It was natural for the Communist party to view law as an instrument of the state."

Third, the West is not all of mankind. Much of the Third World has adopted, through colonization or domestic effort, common law or civil law systems. How well do these legal systems travel? Common law with its reliance on case law and custom and on judicial independence in the former British colonies likely is more protective of rights than is codified law in the former European colonies. But this remains to be shown.

Marxist-Leninist Law. While Communism has collapsed in Eastern Europe and the former Soviet Union, the legal system remains Communist. Marxist-Leninist legal tradition began with the Russian Revolution, when the substantive rights of the Russian peoples ended. There are 19 Communist-bloc countries in the sample. During the Communist era, these nations, viewed political and civil rights and justice as bourgeois precepts, designed to suppress and exploit the working class. Marx, Engels and Lenin wrote of socialist law as a system of rules of conduct made and enforced by the state. They recognized politics as a feature of the legal system and of legal processes. Hence, it was quite natural for the Communist party to view law as an instrument of state. In the former Soviet Union, a majority of the defense counsels, judges, assessors and procurators were members of the Communist Party. All institutions and organs of government were party-controlled, as was law-making. Presumably, this contributed to the extraordinarily high criminal conviction rate in the Soviet Union.

Muslim Law. About a billion people in 69 countries are Muslims. About a quarter of the countries in the sample have a Muslim majority and an Islamic constitution in which the word of Allah is law. Theologically rooted legal systems are notoriously indifferent to subjective rights. While the vast majority of Muslim countries retain common or civil law traditions from their days as European colonies, Muslim law has lately modified these foreign traditions, in some cases beyond recognition. The trend is exacerbated by Islamic fundamentalism.

The Muslim legal tradition has its roots in the 23-year period of Islamic legislative activity from 609-10 A.D., the time of the Revelation, to 632 A.D., the year of the Prophet's death. For Muslims, law is what God wishes it to be, as revealed to Mohammed.

The four principal sources of Muslim law, in descending order of importance, are the Koran, Sunna, idjma and kiyas or 'akl. The Koran is the word of God as revealed to Mohammed and is the ultimate source of Muslim law. Composed of 114 Suras, the divine commands, obligations and duties are contained in some 500 verses, about 80 of which constitute a codified law. The Sunna is the traditions or precedents of Islam, whose validity is based on its transmittal by someone who heard it in an unbroken chain from the Prophet, if a Sunni Muslim, or the Imam, if a Shiite.8 The idjma is a body of doctrine or custom upon which all Muslims agree. For example, only males may initiate divorce. The kiyas are analogical deductions or juridical reasonings, a source of law to Sunni Muslims but not to Shiites. The Koran and the Sunna are unimpeachable. The kiyas and even the idjma are tainted.

An article of faith to a Muslim is that justice is an attribute of God. The mudjtahid is the legal expert. He is trained in the four sources of law with particular emphasis on the 500 verses and on "correctly" solving controversial points. Independent thinking is not admired. Islamic criminal law is inflexible even in sentencing. There is no system of appeal from either the verdict or the sentence, unless the decision is contrary to the Koran or the Sunna. Muslim civil and commercial law is more narrowly construed and religiously flavored than is Western practice.

Judicial independence is not a characteristic of the Muslim political system. Throughout history, Muslim judges have served those who govern. The theory of the separation of powers is alien to Muslim tradition. Judges of the highest rank are appointed by those in power and serve at their pleasure. Judges of lesser rank are appointed by judges of higher rank and serve at their pleasure. The entire judicial structure is an instrument of the state, designed to promote conformity to the will of those who govern. What is the standing of individual liberty and subjective rights (hakk) under Muslim law? Muslims do have certain inalienable rights, such as the right of a husband over his wife and a father over his child. But the range of personal freedoms taken as a matter of course in the West is unknown to Muslims. The Koran expressly requires obedience to those who govern.

"The range of personal freedoms taken as a matter of course in the West is unknown to Muslims."

Measuring Liberty

Gastil ranks countries by the degree to which they respect political rights. His rankings range from 1 (the highest degree of liberty) to 7 (the lowest) and are based on the degree to which individuals have control over those who govern. Specifically:

• A rank of 1 describes a political system in which the vast majority of the polity is enfranchised with the right and opportunity to vote, and political parties may be freely formed to compete for public office.
• A rank of 2 is accorded to countries with an open political process that works imperfectly because of poverty, backwardness, ignorance, violence or other structural limitations; yet in such countries those who govern can be voted out of office.
• Countries ranked at 3 have political systems in which elections occur but in which coups d'etat, ballot-stuffing, vote-buying and other nondemocratic irregularities are frequent.
• A rank of 4 describes political regimes in which free elections are blocked constitutionally or in which the outcome of the electoral process does not determine the configuration of power.
• A rank of 5 describes a political process that is tightly controlled by those in power and produces electoral results without significance.
• Political regimes that do not hold elections or states that offer a single list of candidates to whom voters pay ritual tribute are ranked with a value of 6.
• A rank of 7 is reserved for regimes that are tyrannical and illegitimate.

"Gastil ranks countries by the degree to which they respect political rights and civil rights."

• Countries with political systems that adhere scrupulously to the rule of law and constitutionally protect and enforce freedom of expression are ranked as 1.
• A rank of 2 describes political systems with similar aspirations but an inability to achieve them because of internal strife and violence, ignorance, limitations on freedom of the media or restrictive laws.
• A rank of 3 is accorded to political systems that appear to support civil liberties, that experience unresolvable political deadlocks and resort to martial law, jailing for sedition and suppression of the media but that can be successfully opposed in the courts.
• In political systems ranked as 4, broad areas of freedom coexist with areas in which rights are proscribed or circumscribed.
• In regimes ranked as 5, civil rights are denied arbitrarily and the media is state-controlled and censored.
• In countries ranked 6, the rights of the state take precedence over the rights of the individual, although the occasional political complaint is permitted.
• A rank of 7 is bestowed on regimes in which citizens have no rights relative to the state.

The Relationship Between Law and Liberty

Socialist Law, Muslim Law and Independent Judiciaries. The Appendix describes the statistical techniques this study uses to compare countries with different legal systems. The evidence supports the following conclusions, as Figure I and II show:

"Non-socialist countries are significantly freer than socialist countries, and non-Muslim countries are freer than Muslim countries."

• Nonsocialist countries are significantly freer, in terms of both civil rights and the enjoyment of democracy, than socialist (Marxist) countries.
• Non-Muslim countries are significantly freer than Muslim countries.
• Countries with an independent judiciary (rule of law) have substantially more liberty than those without such a judiciary.

• After we removed the Muslim and communist countries, we found that common law is associated with significantly more political freedom than civil law (a ranking of 2.99 vs. 4.05).

"Common law countries are associated with more political and civil liberty than civil law countries."

• We also found that common law countries are associated with significantly more civil liberty (a ranking of 3.00 vs. 3.85).

• The probability that a nation with a common law system will have a completely open political process (a ranking of less than 2.0) is 28 percent, while the probability in a nation with civil law is 16 percent.

"The incidence of freedom in common law countries is 2.3 times greater than in civil law countries."

• If political freedom is defined as a ranking of less than 3.0, the incidence of freedom in common law nations is 2.3 times greater than in civil law countries.

• The probability of tyranny (a ranking of more than 6.0) in civil law countries is 30 percent, while in common law countries it is 6 percent - a difference of five to one.
• If a closed political process is defined as one with a ranking of 5.0 or more, then the incidence of oppression is 2.3 times greater under civil law than under common law.

Conclusion

"Nations that have chosen judge-made law have taken a path by which the law is to be discovered."

Alternatively, law is what those who govern say it is. Representative government is no guarantee that subjective rights will not be traded for a vision of society that is a twinkle in a legislator's eye. Most civil law countries are not representative democracies, and liberty has suffered under this legal tradition. Law by legislation, a sort of trial-and-error legal tinkering in the West, has resulted in a decline of the law and an erosion of liberty in these countries.

NOTE: Nothing written here should be construed as necessarily reflecting the views of the National Center for Policy Analysis or as an attempt to aid or hinder the passage of any bill before Congress.