The Costa Rica Legal System – Roman Civil Law
Costa Rica has a Roman (Napoleonic) Civil Law System as its Judicial System, which is the System of laws used primarily throughout the countries of Latin America and continental Western Europe. This is a very different Legal System than English Common Law, which is the dominant Legal System utilized in Canada, the United States, the U.K., and British Commonwealth Countries.
Having Law Degrees from both British Columbia and Costa Rica, under the English Common Law and Roman Civil Law Systems respectively, and having practiced law for a considerable time in both jurisdictions, I believe that I am uniquely qualified to comment from both an academic and a practical perspective, on the differences.
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 be generated in order to achieve similar legal results. In many cases, the form of a document becomes as is important as the substance of the document. This emphasis on “form”, over “substance”, complicates the delivery of legal services, generally contributes to significantly longer periods of time being 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 a more logical approach to performing such legal functions. A good example of what I am speaking about would be 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 be by a Public Deed, printed in a Notary Public’s Public Deed Book, signed by the party granting the Power of Attorney before the Notary, and depending upon the scope of the Power of Attorney granted, possibly 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 is the fact that in the Civil Law System, legal case precedents (Judge made law) carry little, or no weight in the Court deciding future cases possessing 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 a case, in order 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. These considerations taken together, create a “common thread” of legal cases, to allow 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 the presiding judge in reaching a decision on the case before them and 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 and judges are free to interpret the facts with respect to any particular Code Article that is applicable. 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, as no predetermination of the Court’s possible ruling in any given case is able to be researched by the lawyers involved, with any certainty. There is no body of binding Jurisprudence to consult, which results in an open and virtually unrestricted consideration of any case presented to the Court by the presiding Judge. It can also allow for 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 under which it is to be governed and to provide a mechanism by which disputes between its citizenry may be settled. The question remains, under which of the foregoing Judicial System examples are you more likely to find Justice, in the settlement of such disputes?
