Civil law (Ecuador) versus common law (U.S.): Societal safeguards or personal responsibility?

Mar 22, 2021 | 66 comments

By Sylvan Hardy and Deke Castleman

Many expats who follow Ecuador court trials are confused. Why are judges making the decision of guilt or innocence? Where’s the jury? Don’t the defendants deserve a judgement by their peers?

TV attorney Perry Mason personified trial by jury in the U.S. in the 1950s and 1960s.

They don’t know that Ecuadorian justice, like most of the rest world, is based on a civil law system.

The U.S., along with the U.K., Canada, Australia, India, and a few other former Commonwealth countries, are ruled by “common law,” also known as “case” or “precedent” law. Common law is a legal system in which laws are enacted by legislatures, but are developed, refined, and sometimes even transformed by lawyers, judges, and juries through the cumulative decisions rendered in court cases.

Common law is an adversarial system where opposing parties present their sides of a dispute to a judge and often a jury; the verdict in an individual case often helps determine what the law is, how it should be interpreted, or how it should be changed.

Common law’s obligation to provide an injured or offended plaintiff with his or her “day in court” in non-criminal cases creates a highly litigious legal environment where lawsuits, many of them frivolous, abound.

In two graphic examples, Kellogg sued Exxon, claiming that customers might confuse Exxon’s tiger logo with Kellogg’s Frosted Flakes’ mascot, Tony. And a Minnesota man sued illusionist David Copperfield, arguing that by apparently defying the laws of physics, Copperfield employs godly powers, and since the plaintiff is God, Copperfield is stealing from him.

In the U.S., civil lawsuits cost the economy upwards of $300 billion annually. According to the U.S. Federal News, every man, woman, and child in the U.S. now pays a “lawsuit tax” of around $1,000 a year.

By contrast, Ecuador, along with all of Latin America, most of Europe, all of Asia, and most of Africa, 150 countries in all, operates under “civil law.” In civil-law societies, laws are written, collected, and codified by legislatures and are rarely subject to co-creation by the outcomes of lawsuits and the opiniochl justicens of judges and juries. As such, the court system is inquisitorial, unbound by precedent.

Courts are composed of specially trained magistrates with limited authority to interpret the law. Court officers examine evidence and, often with the help of legal scholars, develop the arguments for both sides of a non-criminal dispute. Then they rule on the issue.

In effect, a magistrate is an investigator, prosecutor, defense attorney, judge, and jury all rolled into one. He’s also a mediator; after a ruling, he helps resolve the disagreements that led to the lawsuit, about such issues as contracts, property ownership, divorce, child custody, personal injury, property damage, and the like.

Civil-law systems discourage the kind of blame-game lawsuits that clog common-law courts. When the system disallows you from blaming someone or something else, you’re reduced to either blaming no one or yourself. Thus, civil law makes people, in the most basic terms, responsible for themselves.

This manifests in various ways. Crossing the street is a good example.

Of course, you need to have your wits about you on foot, especially on crowded city streets, if you don’t want to get run over, whether you’re in a common-law or civil-law country. And pedestrians do have certain rights in civil-law Ecuador, such as at corners, where cars are mandated to yield. But cars have the de facto right of way in Ecuador.

Here’s the difference. In a common-law country, you get both psychological consolation (before the fact) and, often, financial compensation (afterwards) if you’re involved as a pedestrian in a traffic mishap. Conversely, in a civil-law country, except in the most egregious cases, no one rushes to financially reward you for what’s considered your own carelessness, obliviousness, or lack of personal responsibility, or even just some unfortunate act of God.

One rather strange effect the pedestrian-automobile relationship in Ecuador might have on you is when you return to the U.S. or Canada, especially if you don’t drive in Ecuador and you do in your home country. You’ll probably be somewhat confused for a while, because the whole system of pedestrians having the right of way now seems so backwards.

As a pedestrian in your home country, you were always used to acting like Dustin Hoffman in Midnight Cowboy (“I’m walkin’ here!”). But after running for your life from vehicles small and large in Ecuador for even a short while, you’re always twitching and jerking around cars. Meanwhile, as a driver, where you’ve become accustomed to pedestrians scurrying out of your way, now you’re back to slamming on the brakes when some jaywalker advances a big toe off the curb. Call it reverse culture shock.

Another example of the role personal responsibility plays in a civil-law society: prescriptions for drugs. In Ecuador, you don’t need a prescription to buy many drugs at a farmacia. You don’t even have to go to the doctor first. And if you do go to the doctor and he recommends a pill for what ails you, he writes it down on a piece of paper, not as an actual script, but just to let the pharmacist know exactly what medication he wants you to take. (For the record, a handful of controlled-substance drugs do require prescriptions, such as psychiatric medications; following the bird-flu epidemic in 2009, many antibiotics were added to the list as well.)

Which system is better? It depends on your philosophy of personal responsibility. Do you believe that society should provide as many safeguards as possible against the exigencies and pitfalls of life?

Or do you believe that people are (or should be) smart enough to be responsible for themselves?

Sylvan Hardy

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