Why are the Anglo-Saxon legal systems so different from the rest?
There is a PhD awaiting a bright student on why the English and US legal systems (the Anglo-Saxon systems) differ so much in the way they operate from other legal systems in the world. There are many examples. I do not mean trial by jury and the use of precedents, which are rooted in our procedural common law. I am referring to the way that legal practice has developed.
We know that the Anglo-Saxon systems fostered the concept of large law firms, which have since dominated global legal commercial practice. Why? I will give reasons, but the history will always be more complex and plural than a short article can accommodate.
Some of the more important reasons behind the development of large law firms are: solicitors and US attorneys were not just tied to court work, but saw themselves as business advisers; their partnership structures were flexible, without any limitation on partner numbers or geographical jurisdiction of practice; and the English language spread as the lingua franca during this period.
But the future looks different, too. At a recent meeting of chief executives of European bars, there was a discussion on the radical technological changes in legal practice brought about by the spread of outsourcing, online legal services, unbundling of services, automated delivery of parts of legal practice, and rating websites. In Anglo-Saxon legal
circles work is shrinking, and the future of the structures and qualifications of providers is changing rapidly. How was this affecting the non-Anglo-Saxon world? It is no surprise there was a qualitative difference on the continent, where these developments barely had any impact.
Why? Here are some theories: the technology has almost all been developed in the US, and so it is easy for its implementers to spread their services to other English-speaking countries, without too much effort; the market for English language legal services is huge, whereas the market for Danish or Czech language legal services is much smaller, making it less of a commercial proposition; and continental jurisdictions sometimes have strict rules on who can provide legal services, making entrance by market-breakers far more difficult (look at the prohibitions placed on taxi service Uber in European countries).
However, do not believe that the Anglo-Saxon systems are marvels of free markets against those conservative Europeans, since Sweden and Finland beat us hands down on liberal markets.
And then we come to the third example: pro bono. There has been an interesting report on comparative legal pro bono work, published by the EU and the Council of Europe in the context of a joint programme on the protection of the rights of entrepreneurs in the Russian Federation against corrupt practices.
Under this unlikely heading, a technical paper has been produced giving a ‘Comparative Analysis of International and Russian Pro Bono Practice’. There is a mine of useful information in the report, but particularly in the comparative section which looks at pro bono around the world. Again, the Anglo-Saxon systems turn out to be different.
In Europe, the report looks at five jurisdictions (Czech Republic, Germany, Spain, Hungary, and England and Wales), and this is its conclusion: ‘Pro bono in the UK, and more specifically the jurisdiction of England and Wales, has the most developed culture and practice of pro bono in Europe.’ The US, Canada and Australia are also shown to have sophisticated systems.
Why? Large law firms, which are Anglo-Saxon specialties, have driven pro bono for reasons of image, recruitment and corporate social responsibility. In this, US culture and practices, developed in a country without a comprehensive legal aid system, have doubtless influenced the UK. And in the UK, the giving of advice by non-lawyers, such as Citizens Advice, has led to a long tradition of lawyer pro bono support.
Where do these examples lead? There must be more to it than the old cliche that we are all different anyway. It certainly does not lead to the conclusion that we are better. The French legal system, for instance, has developed (in my view) better ways of dealing with clients’ money and professional indemnity insurance than we have in the UK.
Some common themes can be found nevertheless. The spread of the English language, of US technological know-how, and of Anglo-Saxon business practices, tied up with the dominance of the US around the world, have led countries in the Anglosphere to develop in a different direction, magnifying differences between themselves and those outside the Anglosphere.
It all turns out to be a matter of US supremacy, under which the UK’s legal services have flourished. It is not a question of being ahead at all, but of being lucky (some might even argue unlucky) in our master.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs