Like the judicial systems used primarily throughout the countries of Latin America and continental western Europe, Costa Rica has adopted a Roman (Napoleonic) civil law system. This is very different from English common law, the dominant legal system in Canada, the United States, the U.K., and British Commonwealth countries.

Having law degrees from both British Columbia, Canada, and Costa Rica, under both the English common law and Roman civil law systems respectively — and having practiced law for a considerable time in both jurisdictions — I believe I am uniquely qualified to comment on the differences from an academic and a practical perspective..

Roman civil law overview

The civil law system is significantly more formal in its requirements than the common law system, with much more documentation required to achieve similar legal results. In many cases, the form of a document becomes as important as the substance of the document. 

This emphasis on form over substance complicates the delivery of legal services. It generally contributes to significantly longer periods of time required to complete any given legal task, and increases the legal costs accordingly.

English common law overview

Common law jurisdictions have adopted a much more functional and logical approach to performing legal functions. A good example is the simple granting of a power of attorney. 

In a common law jurisdiction, this can be accomplished by signing a self-drafted, one-page letter granting a power of attorney to a specified party, with the letter signed by the party granting and the signature witnessed.

In a civil law jurisdiction, the granting of the power of attorney must occur by a public deed, printed in a notary public’s public deed book. It is signed by the party granting the power of attorney before the notary. Depending on the scope of the power of attorney granted, it may be registered in the National Registry, for the power of attorney to be given legal effect.

Striking legal system differences 

The most striking difference between the two different legal systems relate to legal case precedents — judge-made laws. In the civil law system, they carry little or no weight with the court in deciding future cases involving like facts and applicable law.

In the common law system, legal case digests are compiled, which trial lawyers refer to at great length in preparing their own cases. The purpose is to present cases of a like nature for the court’s consideration and persuasion in deciding the case at bar.

In the common law system, a judge is bound to follow the case decisions of a higher court that have a direct relationship of fact and law to the case at bar. Precedent cases of a court of equal standing can be held to be persuasive in deciding a case at bar. Taken together, these considerations create a “common thread” of legal jurisprudence. This allows the law to evolve through future court decisions  to reflect the changing norms of a society. 

This jurisprudence — or judge-made law — produces a significant legal influence on presiding judges in reaching a decision on the case before them. It plays as much a part in deciding the case as any statute in the common law system.

In civil law, no such similar binding consideration of precedent court cases, or jurisprudence, exists. The law is codified as to subject matters. Judges are free to interpret the facts in any given case before them with respect to any applicable code article. The only court decisions made in Costa Rica that are binding on the courts below, are those of the Supreme, or Constitutional Court (Sala IV).

My opinion

In my opinion, going to court in Costa Rica, or other civil law jurisdictions, is much more uncertain. No predetermination of the court’s possible ruling in any given case is able to be researched with any certainty by the lawyers involved. There is no body of binding jurisprudence to consult. 

This results in an open and virtually unrestricted consideration of any case presented to the court by the presiding judge. It can also allow for extraneous considerations to enter into the decision-making process, other than those of a strictly legal nature.

Any civilized society requires a system of laws and regulations for governance and to provide a mechanism for settling disputes between citizens. The question remains: under which judicial system are you more likely to find justice in the settlement of such disputes? 

See this article in the magazine

Open in full screen and unmute the video.

Enjoy the audiovisual story!

post a comment

73 − 63 =