The law of convergence

The traditional distinction between rights and remedies supports the classic account of civil law and common law as an inference from the role played by law in protecting rights and providing remedies. But for legal scholars today a new question arises. Does it still make sense to rely on this distinction to understand how various legal systems work around the world?

According to the distinction, civil law systems protect individual rights to the extent they are previously laid down by the legislature, while common law systems authorize courts to employ their decisions to adapt the existing legal rules to the overwhelming social changes. Civil law courts are depicted as declarative and remedies as legislative response to concrete questions. Instead, common law courts are viewed as creative and remedies as judicial response.

This contrast is rooted in the historical origins of Anglo-American and Continental European legal systems. While the latter were shaped by the idea of written law, which found its main expression in the codification of laws that began in Europe in the 19th century in the wake of the Romanistic tradition, Anglo-American legal systems were shaped primarily by judicial decisions and the doctrine of stare decisis.

Whether or not this account is legally picturesque as a general matter, it is ill-suited to describe the current reality of civil law and common law systems. Courts are increasingly called to reinterpret their role by overcoming the limits of the written law and giving import to constitutional values and judicial precedents. Adaptive interpretations of legal rules and deference to prior decisions are massively becoming the new guidance for resolving disputes. These changes reduce the distance between civil law and common law systems. In civil law countries, remedies gradually cease to be considered consequences of legislative choices; they become judicial responses extending their scope beyond the written law.

For instance, the evolution of European legal systems called upon to protect individual interests in new social and economic contexts offers a good example. How to protect the individual's interest in compensation for non-pecuniary health damages? How to safeguard the rights of underrepresented minorities? How to ensure equal access to civil justice? These are questions that civil law courts have gradually answered through creative and innovative interpretations of general principles of legal systems. In the absence of specific written rules, the legislative vacuum has been filled by the work of case law. In many jurisdictions, the right to compensation for non-pecuniary damage to health and the right of underrepresented minorities to actively participate in public life and political activity have been gradually recognized by the Supreme Courts of various European countries.

Changes, however, are not revolutionary. Instead, they are incremental. The scope of the law is gradually increased. New remedies defer general principles like constitutional precepts. Judicial precedents coherently govern new interpretative developments. The legal system seems to be self-regulating like never before. By comparing how legal systems create new doctrines or construed old theories, it emerges that the distinction between rights and remedies should be reframed as an overarching theory cooperating in general terms. The Italian experience offers another interesting example of this new practice with regard to the application of the doctrine of res iudicata by the Italian Supreme Court. In this case, the Supreme Court overcomes a legal principle established for decades in procedural law, holding that issue preclusion should be interpreted in general terms so as to preclude not only issues concerning the claim asserted but also the matter from which it arises. And this allows for a rapprochement between civil law and common law legal systems, which have long established different rules on the subject.