Best opinion piece on open source and patents in a long time

Of what I know of the German legal system, while precedent isn't binding generally it's certainly more persuasive than in other legal regimes. German decisions tend to cite to more cases and authorities than, say, French decisions.

If you go back to Roman times the role of precedent is totally orthogonal to both civil and common law systems (it's more a myth than fact that continental civil law is more "Roman" than English common law). In Roman times if you had the same facts, you were supposed to have the same outcome. Precedent was binding. You did have a body of jurist-made law. Cases were recorded, cataloged, and distributed. The difference is that Roman jurists, especially before the Justinian Code, but even after, refused to devise abstract rules beyond the facts of canonical cases. (They contrasted themselves with the other extreme of the Greeks.) The Justinian Code let to a revolt among jurists because of this. Civil law and common law diverged differently along these lines. Civil law dropped the binding precedence, but focused heavily on very abstract doctrines. Common law kept precedence (or rather re-emphasized that latent character) and applied legal abstractions more moderately, preferring to stay more strongly rooted to factual patterns.

Also, neither is directly descended from general Roman law or the Justinian Code. Derivation came by way of certain practices of the Catholic Church rooted in Roman legal philosophy (contrasted with the honor-based systems of medieval Europe), and from the academic _exegeses_ made of the recently discovered Justinian Code. The Justinian Code was itself an exegesis and _codification_ of the large body of "common" Roman law, and was politically a centralization if not usurpation of judicial power by the emperor in the waning days of the empire.

Google Books has some very interesting 19th century literature on the development of the Roman and European legal systems. Not much of the basic scholarship has changed. Just read it like Wikipedia; be a critical reader and compare and contrast bold assertions with other authorities.