Why Is It Difficult to Change the Legal System?

Changing a legal system, such as moving from civil law to common law, is a complex and challenging process for several reasons, particularly in regions like Scotland and Quebec, where deeply rooted legal traditions are tied to the civil law system. These challenges stem from the structural, cultural, and historical nature of legal systems, which influence not only legal institutions but also the broader society.

Historical and Cultural Foundations
Legal systems are often a product of a region’s history and culture. Civil law systems, as seen in Scotland and Quebec, are derived from Roman law and later codified into comprehensive legal codes, such as the Napoleonic Code in France, which significantly influenced the civil law tradition. These systems reflect centuries of legal evolution and are deeply embedded in the fabric of society, influencing not just the law itself but the values, legal education, and judicial mindset of those practicing within the system.

Shifting from civil law to common law would require altering centuries of legal development and restructuring how legal professionals are trained and how laws are interpreted. People, particularly in regions with long-standing civil law traditions, may resist change because it would uproot familiar legal processes and concepts.

Structural Differences Between Civil and Common Law
The civil law and common law systems are fundamentally different in structure. Civil law relies heavily on codified statutes as the primary source of law, with judges applying the law in a more straightforward manner based on these codes. In contrast, common law is precedent-based, meaning that judicial decisions in previous cases (case law) play a significant role in shaping the law. This reliance on judicial interpretation and case precedents creates a dynamic and evolving legal system, which can be quite different from the more rigid, codified nature of civil law.

Adopting a common law system would require a complete transformation of the legal framework in a civil law jurisdiction. New laws would need to be developed or adapted to fit the common law tradition, and entire legal infrastructures, such as court procedures, judicial decision-making processes, and legal education, would have to change to accommodate this new system.

Institutional and Professional Resistance
Legal professionals including judges, lawyers, and academics, are trained within a particular legal system, and their expertise is tied to that system's unique characteristics. In civil law countries, legal professionals are trained to apply statutory law and interpret comprehensive codes. A transition to a common law system would require retraining the entire legal profession to navigate a system where precedent and case law are central to legal interpretation.

Judicial institutions, including courts, would face significant operational challenges. Judges in civil law systems typically play a more passive role, applying written laws rather than interpreting them expansively, as is common in common law systems. Shifting to a system where judges have more discretion and where past cases set legal precedents would demand not only retraining judges but also a rethinking of the role of the judiciary.

Legal and Constitutional Complexities
Legal systems are often enshrined in constitutions and national legal frameworks. In jurisdictions like Scotland and Quebec, the civil law tradition is a protected and integral part of their legal identity. For example, Quebec's Civil Code is fundamental to its legal system and its unique place within the broader Canadian federation, which operates under a common law system. Changing legal systems in such regions would likely involve complex constitutional amendments, which can be politically contentious and legally challenging.

Furthermore, legal systems are intertwined with other aspects of governance, including administrative, tax, and commercial law. A change from civil law to common law would require revising a vast body of legal norms across various sectors, leading to a period of legal uncertainty and potential conflict as new laws are introduced and adapted.

Public Perception and Identity
Legal systems are also tied to national or regional identity. For example, Quebec's civil law tradition is part of its distinct legal and cultural identity within Canada. Similarly, Scotland's mixed legal system, which combines civil law traditions with elements of common law, is part of its national heritage. Any attempt to change the legal system would likely face public resistance, as it could be seen as an erosion of local identity and autonomy.

In such contexts, legal traditions are more than just a way of governing society—they are seen as a marker of independence and cultural distinctiveness. The people of these regions may view a shift to a common law system as a loss of their unique legal heritage.

In conclusion, changing a legal system from civil law to common law is difficult due to the deep historical roots, structural differences, institutional resistance, legal complexities, and the cultural significance of existing systems. In regions like Scotland and Quebec, where the civil law tradition is tied to regional identity and governance, such a transition would require significant legal, political, and social effort, making it highly challenging to implement.