Common Law Comparisons
Legal Culture can differ between countries despite their conformity to a similar if not identical legal system. Both the United States and England possess common law systems of law and yet each country embodies a distinctive legal culture. This has been attributable by contrasting both the institutions within the legal system and characteristics of the profession (judges, barristers and solicitors).
According to Posner during 1996 there was about 15 times as more American judges than English judges but only about 10 times more American lawyers than English lawyers. Posner suggests that English judges have more prestige than American judges and a related point is that the ratio of judges to lawyers is lower in England than the United States. The consequence of this is that the English common law system, as opposed to the American legal system, displays a legal culture of greater prestige and elitism not only in the judiciary but also those who are candidates for the judiciary.
In England, and other Commonwealth jurisdictions, barristers are apt candidates for judicial nomination. The reasons for this stem from the common law systems which have a culture to encourage, harness and capture high quality intellect and experience within a concentrated portion of non-judicial officers of the legal profession known as barristers (which includes and accounts for their subsequent appointments to higher ranking Queens Counsel and Senior Counsel).
Barristers are engaged upon a solicitor’s brief instead of direct engagement with the client. This insulation avoids lay persons being taken advantage of by unscrupulous lawyers which is evidently ‘a big problem in the United States, where incompetent lawyers, and known to be such both by judges and by other lawyers, often wow naïve clients.’
The cost of pursuing litigation influences the culture of each legal system in terms of what society perceives as the net benefit gained from the court and the profession. To litigate similar cases in England and the United States would cost approximately the same; however English courts are not as generous as their American counterparts in awarding damages, especially punitive damages. Therefore the net expected benefit of litigation being greater in the United States encourages a legal culture that is more litigious in nature than England.
National character is inherent in the legal institutions of the courts and parliament, their formation and their output in terms of legislation or judgments. For example it has been said that many factors have contributed to the litigiousness of the United States, including: the rights afforded to the people, a written constitution, immigrant origins of its population, racial and ethnic heterogeneity and the wealth and spoils of its population. To this end national character and history influence current legal culture.
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