Fred Carstensen wrote:  
> The genius of the Common Law (as opposed to Civil Law) is its   
> flexibility and dynamism, its capacity to respond to the demands and   
> needs of evolving markets and technological evolution.  A critical   
> advantage in the Anglo-American experience was having, uniquely, the   
> Common law framework.  
>     
  
  
Maybe as an aside of this discussion on spontaneous order (in fact, nor   
really!) but I would like to add something on the opposition between the   
virtuous common law and civil law.  
  
I think not only that it is misleading to attribute every virtue to the   
Common Law: flexibility, dynamism, the capacity ... Path-dependency   
(because of the precedent), lock-in effects and inertia also   
characterize common law systems.  
  
And also, to oppose once again common to civil law is misleading. It   
implies that all the advantages are on one side and the problems and   
limits on the other side. It may be true that "a critical advantage in   
the Anglo-American experience was having, uniquely, the Common law   
framework". It is certainly not true to imply that civil law countries   
lack of of flexibility and dynamism and of any capacity to respond to   
the demand and needs of evolving markets and technological evolution. It   
seems to me that the level of economic and cultural development in   
certain countries (France and Germany for instance) indeed developed in   
a civil law framework.  
  
One reason is that legal codes in civil law countries (The Code   
Napoleon, for instance) cannot be considered as the product of totally   
constructivist approaches. The jurists who "designed" the Civil Code   
made a large use of customs. Another reason is that judges indeed play a   
very important role in civil law countries. The legal system does not   
function as top-down, centralized process. This suggests that the   
genuine distinction is not between common law and civil law but between   
customary law and common/civil law. Bruce Benson has written many   
illuminating papers on this issue.  
  
  
Alain Marciano