As people vested with the authority to hear, determine and preside over matters brought before a court of law, there is no question that judges are an innate part of most, if not all, justice systems. Nevertheless, between different countries and legal systems, the role and significance of a judge vary enormously. Common law judges have always played a prominent role in their respective legal systems due to their strong influence and important role in shaping the law whereas civil law judges have theoretically played a less central and subordinate role. Whilst it is suggested this is due to differences in judicial prestige and the relative status of judges, the supremacy of legislation, the role of precedent and the relationship between the judiciary and the legislature, in many ways the differences are more hypothetical than real.
Civil law countries such as France and Germany have demonstrated that although theoretically, and to an extent realistically, judges do not play a central role within the legal system, they play a more significant role than first thought.
Judges have always played a central role in the common law system; the system itself has been developed in the hands of judges, of whom exercise complete judicial power and have thus built an extensive body of law that binds judicial decisions through the doctrine of precedence (stares decisis). As observed by Merryman, “many of the great names of the Common Law are those of judges… On the other hand, the names of Civil Law judges of the past are hardly remembered.” This is attributed to the strict separation of powers within the civil law tradition that suggests that all lawmaking is done by a representative legislature and the judiciary should be denied all law-making power. Judicial decisions in individual cases are treated as less crucial; they are not binding and therefore they are not considered a formal source of law, nor do they carry the force of law. Thus, rather than case law being the fundamental source of law within civil law systems, it is codes; authoritative systematic, guiding statutes of broad coverage. As the law has evolved, parliamentary legislation has become the principal source of law and whilst the codes are still important, they now only constitute a small part of the existing legislation. Of such importance is legislation that ‘law’ is essentially synonymous with ‘legislation’. As a result, the legislative body is the law-making power central to the legal system.
In addition to this, there is little scope for judicial creativity and interpretation. Whilst common law judges implement the use of judicial interpretation to make and mould the law in light of changing social conditions, civil law judges rely entirely upon these codes and statutes when dealing with cases, their function is to select the appropriate rule from pre-existing legislative provision and couple it with the facts of the situation. Statutes enacted by legislators should be applied without revision of its provisions, leaving much less room for innovative judicial work. Theoretically, codes regulate all cases that could occur in practice, and when certain cases are not regulated by the code, general principles should be applied to fill the gaps. For example, provisions in the French Civil Code and the Italian Civil Code state that if a dispute cannot be decided by a precise provision, consideration should be given to provisions that regulate similar cases or analogous matters, and if still in doubt, should be decided according to general principles of the legal order of the State. Essentially, ‘The civil law judge is a mere operator of a machine designed and built upon legislators’ , lacking control of the judicial process. This results in the codes and statutes playing a more influential role in the decision of many cases than the discretion and interpretation of the judge.
This lack of centrality is further illustrated by the pre-eminence of legal scholars over the judiciary and the civil service character of the judiciary. Civil judges lack the prestige often associated with judges of the common law. Unlike in the common law tradition, where judges and lawyers share a common custom of both education and practice, there is no counterpart in the civil law. Being a judge in the civil law system is seen as a civil service position, and judges are regarded as government officials. This opinion is strengthened by the role legal scholars play in administering the law. The important historical contributions university law schools made to the evolution of civil law and the unchallenged role they have over legal education means the legal scholars play a prominent role in shaping doctrine, so much so that judges, particularly in cases where the law is confusing or unsettled, look to scholarly writings for guidance. Since, theoretically, case law is not binding, the writings of legal scholars, which are considered to be legal authorities, act in much the same way as the doctrine of precedence, co-ordinating cases with each other and bringing consistency to the legal system. Because of this, their writings indirectly control the judges’ understanding of case law and play a highly influential role in the administration of the legal system.
Contrary to these civil law theories, it can be seen that in reality, many civil law judges have rejected the notion that judges cannot make law, overturn legislative enactments, or make binding decisions, and consequently are playing a more significant role in shaping the law. For instance, at a basic level, the French law of delict (torts) is inadequately covered in the French Civil Code and accordingly, much of French torts law is found in case law decided by judges, rather than in codes or statutes. Two leading examples, the cases of Jand’heur and Blieck exhibit the ability of judges to develop the law, which in the case of Janh’heur was later supplemented by legislation. Furthermore, the German Federal Constitutional Court has become known to have one of the most extensive powers of any constitutional court in the world, having what scholar Edward McWhinney described as a “free-law finding” judicial review, a sharp contrast to the strict separation of powers traditionally seen in the civil law tradition. Theoretically, the Constitutional Courts should only act where legislation is unclear or in dispute, however in 1975 the West German Federal Constitutional Court struck down a liberal abortion law, ruling that the German Parliament, by allowing this, was violating the constitutional rights of unborn children, evidencing judicial review and the real role civil law judges play in creating law in some countries. Lastly, as stated by Shapiro, the characterisation of civil law judges as mere individuals who couple the law with the case at bar is “fundamentally incorrect”. Precedent plays a large part in the legal decision making and the development of law, whether or not it is considered to be legally binding. Civil law countries adopt the doctrine of jurisprudence constante, which is fundamentally similar to that of stares decisis. This means that a settled line of cases has considerable authoritative force, and a continuous line of precedence is a relative and often decisive factor in judicial decision making. Thus, judicial decision do become a source of law (in Spain they often become legislated) and it is suggested that these lines of cases can create a rule of customary law which then becomes binding, effectively giving judges and their decisions the force of the law. Although codes and legislation do play the predominate role within the civil law system, it is evident through the few discussed examples that the civil law judges role is not as limited as theory dictates.
It is evident that, notionally, judges do not play the central role within the civil law system. Due to the strength of the separation of powers doctrine with the civil law system, the central role is predominantly maintained by the legislature, of whom develop the comprehensive codes and statutes that outline how the legal systems work. Unlike in common law systems, theoretically, there is no room for creative statutory interpretation or judicial review thus the role of the civil law judge is merely to couple the code or statute with the facts of the situation. With no real force of law, judges technically play a subordinate role within the system. However, the analysis of particular cases in civil law countries such as Germany and France have evinced that judges are playing a more significant role than has traditionally been prescribed to them. Many of the theories regarding judges in the civil law are fundamentally incorrect; it is evident, particularly as the common and civil law traditions begin to converge, that judges are beginning to ascertain the force of the law, whilst their decisions are gaining the force of the law. Although the legislature, codes and scholars currently maintain the centrality of the civil law systems, it is evident that judges play a more significant role than they are given credit for. As ascertained by Merryman, ‘the important distinction between the civil law and the common law judicial processes does not lie in what courts in fact do, but in what dominant folklore tells them they do’.
BIBLIOGRAPHY
A Articles/Books/Reports
Daly, Mary C.,‘What Every Lawyer Needs to Know About the Civil Law System’ (1998) 1998 (Professional Lawyer Symposium Issues 37) What Every Lawyer Needs to Know about the Civil Law System 37, 39
Fon, Vincy and Francesco Parisi, ‘Judicial Precedents in Civil Law Systems: A Dynamic Analysis’ (2006) 26(4) 519, 519-524
Giliker, Paula, ‘Codifying Torts Law: Lessons from the Proposals for Reform of the French Civil Code’ (2008) 57 (3), The International and Comparative Law Quarterly 561, 564-565
Glendon, Mary Ann, Paolo Carozza and Colin Picker, Comparative Legal Traditions in a Nutshell (West Academic Publishing, 2008), 68-73
Merryman, John Henry, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford University Press, 1st Ed, 1969), 49
Merryman, John Henry, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford University Press, 2nd Ed, 1985), 37-39
Merryman, John Henry and Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (Stanford University Press, 3rd Ed, 2007), 22-35
Mezey, Susan Gluck, ‘Civil Law and Common Law Traditions: Judicial Review and Legislative Supremacy in West Germany and Canada’ (1983) 32(3) International and Comparative Law Quarterly 689, 690-696
Pejovic, Caslav, ‘Civil Law and Common Law: Two Different Paths Leading to the Same Goal’ (2001) 32(3), Victoria University of Wellington Law Review 817, 819
Shapiro, Martin, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981), 125-126
Yu, Seon Bong, ‘The Role of the Judge in the Common Law and Civil Law Systems: The Cases of the United States and European Countries’ (1999) 2(2), International Area Review, 37-38
B Cases
Blieck, Cour de cassation [French Court of Cassation], 89-15231, 29 March 1991, reported in (1991) Bull. Civ No 1, 1
Jand’heur, Cour de cassation [French Court of Cassation, JURITEXT000006952821, 13 February 1930, reported in (1930) Bull Civ. Arrets No 34, 68
Bundesverfassungsgericht [German Federal Constitutional Court], 1-95 reported in (1975) 39 BVerfG
C Legislation
Code Civil [Civil Code] (France)
Codice Civile [Civil Code] (Italy)
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