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The basic structure of legal reasoning is identical in common and civil law systems. The lawyer or the judge is confronted with a set of facts F having the properties f1…fn and a request for relief R. The question is whether R can be granted under the law given F, or put differently, whether there is a right to R given F, specifically, whether f1…fn fulfill the elements E of a norm N that orders the relief R. Those are the elements of legal reasoning: facts and norms, legal elements and remedies.

How does a lawyer go about answering the question: Can R can be granted based on N given F? It helps to understand first what kind of question this is. Norm N has elements e1…en. If e1…en are matched by the facts f1…fn, then the norm orders or authorizes remedy R. (The concept of remedy is used broadly in the sense of legal consequence or Rechtsfolge.) Thus, the question is not factual (”Are f1…fn true?” That is a jury question.), nor is it purely normative (”Should R be attached to F?”). Rather, it is a question of fit, of analogy, of similarity, not unlike an aesthetic judgment: “Is F a case of N? Are the specific facts of the case (F) adequately described by the general rule N?”

To answer the question whether F is a case of N, lawyers disassemble F into its distinctive elements (distinctive with respect to the elements of N) f1…fn and N into its distinctive sub-elements e1…en (distinctive with respect to F). Then, the search for precedent begins. A precedent is an argument for analogy. It goes like this: “In a prior case where the facts Fp were sufficiently similar to the facts of our case F, a (higher) court applied norm N and granted remedy R. Consequently, this court should do the same, and apply N to F and grant R.” A good lawyer spends most of his or her energy breaking down F into its elements f1…fn and Fp, the facts of the precedent, into fp1…fpn in order to explain why both sets of facts are similar, taking into account the purpose of the common normative context N. In other words, only in clear cases would a lawyer argue directly that this court ought to subsume F under E, because that would be asking for a new normative pronouncement. Usually, a lawyer would choose the more roundabout way of arguing similarity between two sets of facts, because it simplifies the job of the court. If the facts are shown to be sufficiently similar, the court does not have to make a new legal pronouncement (”E applies to F”). Rather, the court can simply restate a prior legal pronouncement: “In a previous case, E applied to Fp, and since F is so similar to Fp, that same rule applies to F.”

In this process lies one of the key differences between the common and the civil law traditions. Civil lawyers argue that F should be subsumed under E; each case is a request for a new pronouncement of the law. Common lawyers argue that F is similar to Fp, and that an old pronouncement of the law does in fact cover the case at bar; most “new” cases are little more than trackbacks to old cases.

Is there a difference in substance? Not really, because the underlying question remains the same: “Can F be subsumed under N, yes or no?” The difference lies in the currency that the legal discourse assigns to certain types of arguments. That difference in persuasive value informs the process of legal writing and research.

1. A typical civil law argument uses F as the starting point for rapid abstraction into high-level normative categories, and then, using deductive rhetoric, proceeds to unfold ever more detailed sub-categories (which have been developed by past decisions and scholarly commentary) until it identifies F as an instance of a particular normative sub-category. Consequently, civil law arguments tend to place great value on systematic coherence.
2. A typical common law argument only generalizes the facts of F to the extent necessary for a comparison with Fp. Anything beyond that point serves no clear purpose.

Since (1) has been repeated over and over in a civil law jurisdiction, court decisions have explained the analytical framework or dogmatic structure of the law in great detail. Civil law jurisprudence is “thick” with respect to categories and normative abstractions. In common law jurisdictions, courts tend to exercise restraint and only decide what is necessary to apply N to F. Thus, common law jurisprudence is more “horizontal” and tends to be weary of generalizations. Common law is “thick” with respect to the factual properties of past cases, providing a rich reservoir for comparison. Not surprisingly, the discussion of facts in US opinions is much more detailed than it is in comparable German opinions, and US readers of German digests (e.g., the case reports in the NJW), are often shocked to find that the editors omit the facts.

Does that mean that the common law has no place for dogmatics and artfully crafted normative categories? Not at all. But while civil lawyers tend to deal with the facts in the back of the house and proudly display the analytics to the world, common lawyers deal with the analytics in the basement and present a primarily factually compelling narrative to the world. The locus of dogmatic jurisprudence in the US is legal research. Novice researchers never leave the level of comparing F to Fp. Expert researchers are dogmatically savvy, they find Fp by generalizing F and then following a deductive pattern, much like a civil lawyer would. But unlike the civil lawyer, common lawyers don’t usually make the high-level dogmatic categories a part of their legal writing.

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