Civil vs. Common Law
Throughout the summer, I have been working primarily on projects based in Bosnia and Herzegovina and in Moldova. Both Bosnia and Herzegovina (BiH) and Moldova operate under civil law traditions, so some key differences between the civil law tradition and the common law tradition have become apparent. As of now, NCSC’s projects in BiH and in Moldova focus on enhancing legal education (establishing legal research and writing courses, encouraging practice-based learning experiences, and creating networks for students to obtain internships), but it’s interesting to note that these legal education initiatives aren’t taking place in “law schools” like we have in the United States. In BiH and in Moldova, students don’t attend law school after their undergraduate studies. Instead, they begin to study law during their undergraduate years. Following their undergraduate education, they must gain practical experience through an internship or apprenticeship- like program. Lastly, they must also pass a professional examination. It’s also interesting to note that becoming a judge in most civil law traditions is not done the same way as it is in the U.S. and most common law traditions. Instead of judgeships being a “promotion” after serving as a lawyer for a while, students in civil law traditions often have to study and undergo internships/apprenticeships specifically to become judges. This educational framework makes it clear that the process of legal education in BiH and Moldova is quite different than it is in the U.S. Because legal education initiatives focusing on research/writing and the early introduction of practical legal skills must take place at the undergraduate level, students undergoing these courses do not have the same experience that many American law students do when undergoing these programs in the U.S. Although U.S. law students can choose what they want to major in during their undergraduate studies, we were all likely exposed to some sort of writing skills class in undergrad- even if it was not specifically legal-focused. Furthermore, we are older and may even have some experience working in legal fields before entering law school and being exposed to legal writing and research programming. Therefore, introducing legal research and writing at the undergraduate level presents a certain set of challenges that we may not necessarily encounter in law schools in the U.S.
Although the legal research and writing programs in NCSC’s countries of implementation are largely based off of the American model (with input from William & Mary professors in many instances), the civil law tradition does not place an emphasis on case law or precedent, so the curriculum has to be altered to match that tradition. In the U.S., students are often taught the CREAC method (Conclusion, Reasoning, Explanation, Application, Conclusion) to approach legal writing. In the E (explanation) section, we are expected to raise all of the relevant case law/precedent that supports our argument. However, in civil law traditions, including BiH and Moldova, judges are not bound by legal precedent in the same way. While they may be influenced by it, codified statutes and ordinances must be the basis for the judge’s decisions. Therefore, the style of legal writing students in these countries is taught mirrors more of a CRAC method (Conclusion, Reasoning, Application, Conclusion). There is no need to offer the same sort of explanation of case law or to offer similarities and differences between past cases and the case at hand. Instead, these students must focus more on the analysis of a legislative authority and then apply that to their case.
It is very interesting to me that although students in BiH and Moldova are undergoing legal research and writing programming that may be similar to my own in scope, they must approach it from a completely different context and legal tradition. I sit in on field office meetings with Moldova, and I even heard a legal research/writing lesson plan come up that was similar to one I engaged with in the fall semester of 1L year. Even though I engaged with the same general set of facts as the Moldovan students, we likely had to approach the issue very differently due to the differences in our legal traditions. Although I was familiar with some of the historical differences between the common law and civil law traditions coming into this internship, it has been neat to see how these differences have further revealed themselves in the course of my work.