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Gerald
W
.
Scully
Law
,
Liberty
and
Economic
Growtli
Introductíon
Every
society
has
a
legal
system
.
Broadly
,
legal
systems
may
be
classifíed
into
three
types
:
common
law
,
civil
law
and
socialist
law
.
Other
legal
traditions
influence
these
systems
:
for
example
,
African
tribal
law
,
Oriental
law
.
Hindú
law
and
Muslim
law
.
Among
these
only
Muslim
law
is
suffíciently
influential
and
widespread
to
be
addressed
in
this
study
.
'
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
.
^
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
that
which
is
pleasing
to
the
person
in
power
[
that
]
has
the
forcé
of
law
?"
is
Earlier
studies
have
shown
that
there
a
positive
relationship
between
various
measures
of
liberty
and
economic
growth
.
^
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
it
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
."*
Three
Types
of
Legal
Systems
The
legal
systems
of
the
West
,
its
former
colonies
and
many
non-colonized
countries
are
subdivided
into
two
major
Gerald
W
.
Scully
is
a
Sénior
Fellow
of
the
National
Canter
for
Policy
Analysis
,
and
a
professor
of
economics
in
the
School
of
Management
,
University
of
Texas
at
Dallas
.
His
articles
have
appeared
in
the
American
Economic
Review
,
the
Journal
of
PoUtical
Economy
,
the
Journal
of
Law
and
Economics
,
Public
Choice
,
and
other
scholarly
journals
.
His
most
recent
book
Is
The
Market
Structure
of
Sports
.
This
article
was
originally
published
as
NCPA
Policy
Report
189
(
December
1994
),
and
is
reprinted
by
permission
of
The
National
Center
for
Policy
Analysis
.
12655
N
.
Central
Expressway
,
Suíte
720
,
Dallas
,
Texas
(
USA
)
75243
,
(
214
)
386-6272
.
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
bilí
before
Congress
.
Laissez-Faire
44
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I
)
categories
:
those
derived
from
Román
law
plus
codified
statutes
,
and
those
derived
from
English
common
law
.
A
third
legal
system
,
Marxist-Leninist
law
,
has
also
been
important
in
the
20th
century
,
although
it
is
being
gradual
ly
dismantled
in
many
formerly
socialist
countries
.
These
three
legal
systems
can
be
further
characterized
by
religious
influence
(
Muslim
or
non-Muslim
)
and
by
whether
or
not
an
independent
judiciary
exists
.
[
See
Table
I
.]
Let's
briefly
review
these
systems
.
Civil
Law
.
Codified
law
govems
non-English-speaking
Europeans
,
their
former
colonies
and
many
historically
independent
non-European
countries
.
Among
the
latter
,
the
Germán
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
.
Román
law
reached
coherence
in
its
first
codification
under
Justinian
,
in
533
A
.
D
.
Common
Law
Civil
Law
TABLE
Types
of
Legal
Systems
(
number
of
countries
Rule
of
Law
Independent
Judiciary
Muslim
Non-Muslim
No
Rule
of
Law
6
9
39
11
32
51
Socialist
19
Total
17
41
109
In
contrast
to
common
law
,
which
aróse
spontaneously
and
evolves
continuously
,
codified
law
emerged
discretely
.
The
Justinian
Code
nullified
all
prior
law
in
the
interest
of
preserving
the
"
purity
"
of
Román
law
.
After
the
code
was
prepared
,
the
use
of
any
other
commentaries
was
forbidden
.
Similarly
,
the
Code
Napoleón
(
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
govem
,
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
pre-Revolutionary
France
were
prívate
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
Napoleón
contains
2
,
281
articles
.
Frederick
the
Great's
distaste
for
judicial
latitude
was
so
great
that
the
Prussian
Landrecht
of
1794
contains
some
1
6
,
000
provisions
.
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
Laissez-Faire
45
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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
fiínction
is
to
divine
legislative
intent
behind
statutes
.
Codifíed
law
is
only
part
of
the
legal
system
in
countries
foUowing
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
prívate
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
govem
and
administer
judge
the
ir
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
guáranteos
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
provisión
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
non-judicial
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
govems
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
coUections
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
ofEnglcoíd
:
Then
it
was
that
the
great
English
people
was
formed
,
that
the
national
character
hegan
to
exhibit
those
peculiarities
which
it
has
ever
since
retained
,
and
that
our
fathers
became
emphatically
islanders
;
islanders
not
merely
in
a
geographical
position
,
but
in
their
politics
,
their
feelings
,
and
their
manners
....
Then
it
was
that
the
House
of
Commons
,
the
archetype
of
all
the
representative
assemblies
which
now
meet
,
either
in
the
Oíd
or
in
the
New
World
,
held
its
first
sittings
.
Then
it
was
that
the
common
law
rose
to
the
dignity
of
a
science
,
and
rapidly
Laissez-Faire
46
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became
a
not
unworthy
rival
of
the
imperialjurisprudence
.
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
extensión
,
the
individual's
family
,
peers
and
society
as
a
whole
.
Judicial
proceedings
are
accusatory
.
(
Until
modem
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
.
and
public
.
Triáis
are
open
Under
codifíed
systems
,
by
contrast
,
legal
proceedings
are
inquisitional
,
partially
secret
,
multi-stage
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
confmed
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
principie
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
modem
,
if
popular
,
visión
.
This
evolutionary
character
of
the
common
law
protects
and
nurtures
individual
freedoms
.
How
Dífferent
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
religión
,
constitutional
govemment
and
capitalist
,
prívate
enterprise
economic
systems
.
'
this
view
,
the
rule
of
law
is
such
a
common
cause
of
concern
under
both
systems
that
other
institutional
differences
are
more
curious
than
meaningfiíl
.
In
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
concems
about
personal
liberty
are
troubling
,
particularly
in
Third
World
nations
without
a
tradition
ofjudge-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
Laissez-Faire
47
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