Common Law, Roman Law and Negative and Positive Rules

Coming from the Netherlands I was well that the starting point of most of Continental Europe’s legal system is different from the Anglo Saxon (British) system.

The origin of most of the West-European systems dates to Roman Law, however this has greatly been adjusted by the French Civil Code and the Spanish Civil Code.

In many of the former French and Spanish colonies this Civil Code is still in use. The British Common Law made it to places like the USA, Australia, Canada, and New Zealand. Interestingly in places like Quebec and Louisiana the French Code sill applies and in Puerto Rico (US territory) the Spanish Code prevails.

I am interested to follow those origins further. At the Philosophy of Law course of Dr. Kerry Sanders, the political concepts of Negative and Positive Law were addressed. I was wondering if these political concepts matched the difference between Common and Roman Law.

Thanks to my lawyer friend and colleague Chris Savage in the USA I was able to dig deeper into this question. Bringing the learnings from both my teachers together and adding my own understandings to it this is what I have learned so far.

Common Law arises from history. And this was often based on Tribal Law and was seen as natural law.

In areas conquered by the Romans the major tribal laws were codified such as for example Lex Salica in the area from the Netherlands where I was born However, over time more and more was codified along Roman Law. During the Middle Ages this also became the basis for large parts of Church Law. However, significant changes were made as the Church saw that its law as ‘natural’ as this was how God wants it to be. These Church Laws became more and more codified and parts of it became a set of fixed doctrines.

The idea of the common law is that the rules of proper conduct arise “naturally” from people living their lives and the vast majority people do what they are supposed to do, without anybody telling them. But when something goes wrong and someone is hurt (physically, or economically), the injured party goes to a court and asks for compensation. The court says yes or no, by applying “the common law.”  Hundreds and then thousands and then millions of little disputes get decided, one by one, by the courts. And over time the courts write down what their decisions are, and why, and what the “common law” actually is, is supposedly “discovered” by this process.

Code Law such as Roman Law is where the sovereign (king, legislature) writes down a set of rules of behaviour that covers every situation that might arise. If you want to know what you may do, must do, or must not do, in any situation, just look at the code and it will (supposedly) tell you.

During the Middle Ages most sets of Law both followed the principle that God created the world, including its natural physical laws, and that one of our tasks — part of our learning about and appreciating God — was to come to understand the rules for the universe that God had created for us.

This started to change during the period of Enlightenment. Political philosophers started to ask whether, just like there were discoverable “laws of nature” for the physical world, there might also be “laws of nature” for the social/human/moral world. As Hobbs, Locke, Rousseau  and others started to reason that a society organised in accordance to those natural social/political laws would flourish; one which ignored them would fail. They called this ‘Natural Law’ and Common Law is seen as part of Natural Law.

Having explored the issue so far let’s now look at legal concepts such as Negative and Positive Law as this started to evolve in modern times.

Chris provided me with the following information. Note that he uses the words ‘rights’ rather than ‘law’ as this is how these terms are generally used. Philosophically however they can de grouped under Political Law.

 A “negative right” is a right to not be interfered with as you do things. Libertarians love “negative rights.”  They say, in effect, “I can do anything I want that doesn’t hurt anybody else, and you have no right to stop me.” In this vision, everybody has the negative right to be left alone while doing what they want.

A “positive right,” by contrast, is a right to something from others. When we talk about health care being a “right,” or housing being a “right,” we are talking about positive rights.

While the word ‘Negative’ makes sense in this context. Positive is confusing. It is based on the world ‘posit’ meaning: a statement which is made on the assumption that it will prove to be true.

One could say that Common Law comes closer to Negative Law and the Roman Law closer to Positive Law.

Common Law does make sense in a society that only slowly changes, that stays rather homogeneous and where the issues that arise remain rather similar. However, Common Law can’t keep pace with a rapidly changing society.

In the case of Roman Law (French and Spanish Code) that situation is rather different as Laws. These are code driven laws and are just easier to work with in times of change. However, also these codes age and require new ones to be added and to replace obsolete ones. It is also necessary to note that no law is pure. In other words in Positive Law there will certainly have elements of natural law in it.

One other thing, while Libertarians might ‘love’ Negative Law, the reality is that we humans live in a society, and this is clearly not just ‘about me’.

Now, as Chris notes, these two systems are not as different as they might appear. In each case if a dispute arises, the judge will look to some body of written guidance (the code, or the body of judicial precedent), and then decide how to apply that written guidance to reach a decision.  The “source” of the law is different — direct from the sovereign in a code jurisdiction, versus collections of judicial precedent in common law jurisdictions — but the process is similar. Both concepts of law also allow for discretionary interpretation, based on context, by the judges.

As we see with Human Rights, the idea remains that there are certain natural rights. Not ones enacted based on divine rights of kings or codes provided by other sovereigns. These apply universally to all human beings. There are also some strong wordings along these lines in the US’s Declaration of Independence.

If we look at negative and positive rules than it is clear that both legal systems – Roman and Common – in the end contain a combination of the rules.

Paul Budde (standing again on the shoulders of giants)