Excerpt from 'Comparative Economic Analysis of Law Development In Civil Law Systems,' Part 2

This posting is Part 2 in a 4 part series on Law Development in Civil Law Societies. Look out for Parts 3 and 4 the next two weeks. The Civil Law in a Contemporary Context Though there are striking differences in the historical development of civil and common law, contemporary differences between major legal systems are just as dramatic. Some of the more impactful features of contemporary civil law from a comparative sense are the reliance upon statutory codes, the influence of commentators, and the weakness of the judiciary. These are three of the main areas where development of law varies most widely from common law. Although the earliest foundations of civil law reach back over 1,000 years to the codified rules of Rome, contemporary codes themselves are not so different in structure and are no less impactful on the societies they regulate. Under civil law, codes are the law. Codes are intended to serve as the overriding law, superseding those which came before. Judges exist in this system merely to apply the law as it is written, not to make decisions on remedies, or fill in gaps in legislations. Though codes are utilized in common law systems, the contrast is significant. Common law codes incorporate and even supplement themselves with existing ideas and systems. For example, the Uniform Commercial Code (UCC) of the United States is not meant to be complete, and judges are not compelled to find a basis for deciding a given case within the code. Even the official comments offered by the framers of the UCC state that common law may supplement parts of the UCC if judges determine that it is appropriate. See, U.C.C. § 1-103b. Though civil law statutes are written by legislators, the actual development of, and debate over, the laws themselves takes place far from the where voting occurs. This is because in the civil law system, the main driver of legal change is the scholar. It has already been noted that the work of scholars provided some of the material for the early Roman codes. This influence continues to this day, and scholarly opinions are cited frequently. Though this is true to an extent in common law jurisdictions as well as the use of model codes written by academics have become widely adopted, the scholar in civil law jurisdictions plays an even more central role. Interestingly, though the role of scholars is acknowledged, some jurisdictions have attempted to curtail the power of scholars. This is due mainly to the civil law notion that the law is in statutes, and therefore outside opinions should not be necessary. For example, though Justinian codified the ideas of some commentators, he also did so at the expense of the ideas of many others, whose works he banned in some cases. This occurs today as well. For example, in Italy, the citation of books and articles in judicial opinions is forbidden. Merryman, supra at 59. However, even in places such as Italy where referencing scholars is forbidden, scholars still impact decisions and lawmaking, with judges often referring to vague notions of ‘the law’ when they want to cite the body of scholarly work. Merryman, supra at 59. Scholars play a role not only in development of the law, but also in shaping the civil law system itself. German legal science, for example, is a way of looking at statutes, regulations and rules that allows for a more holistic approach to the law. The goal is to find the inherent principles and relationships behind aspects of the law within the statutes, similar to how a physical scientist would look at chemistry, or biology. It is a way to describe the whole methodology and structure of the civil law system. Merryman, supra at 61. This leads to an entirely different approach than that utilized by the common law. While in the civil law, facts are subordinate to high level and sometimes abstract ideas, the opposite is true under common law. However, legal science has made its enduring mark on common law, which has borrowed from legal science in its civil and penal codes and also in the teaching style of American law schools. Scholars play a role in the common law as well. Judges will sometimes cite them in opinions, and they often have input into model codes, especially in the United States. However, it is the judges themselves in the common law who make a comparable impact on shaping law. Under common law, judges are the central figure. Judges are often picked from the ranks of lawyers, and are held in high esteem by peers. Although similar to the civil law scholar in many respects, one obvious difference comes immediately to mind; common law judges serve these functions from the bench in real-time. There are among others three systematic differences between common law and civil law that result from the role of judges in the common law system; stare decisis, judicial review, and judicial discretion. Stare decisis is the common law doctrine that judicial decisions resulting from a specific set of facts should be applied to other cases with similar facts. There are many nuances based upon the relative authority of courts and differences between jurisdictions, but the main point is that courts are bound by the decisions of higher courts. This can take different forms. For example, in the United States, the Supreme Court is the highest court in the land, and all other courts are subordinate to it. Meanwhile, in England, the House of Lords serves this purpose for the time being. This is scheduled to change October of 2009, however, as the country moves to a supreme court system. The doctrine of stare decisis has wide ranging implications, not least among them the fact that once a decision is made by the supreme body, all other courts must follow that line of reasoning. Both critics and proponents of common law systems cite this fact. Detractors say that this leads to uncertainty, as the high court can change its mind, or overturn decisions that have already occurred. However, it also has the effect of creating certainty, as all courts must follow the precedent of established high court decisions. The House of Lords has shown that it is very weary of overturning existing opinion. See, Jones v. Secretary of State [1972] AC 944 (holding that the law as it stood, though flawed, would stand in an English civil case). See also, Knuller v. DPP [1973] AC 435 (holding that the House would not overturn itself in an English criminal case despite seeing justification to do so). Meanwhile, the Supreme Court of the US does overturn itself perhaps more frequently, but typically only in situations where great social injustice would occur, or in the interests of civil rights. See, Lawrence v. Texas, 539 U.S. 558 (2003) (overturning Bowers v. Hardwick, 478 U.S. 186 (1986) which declared that sexual privacy was not a constitutionally protected right); Brown v. Board of Education, 347 U.S.483 (1954) (overturning racially-based segregation of Plessy v. Ferguson, 163 U.S. 537 (1896)). Judicial review is the concept that courts have the ability to declare a law as invalid if it is unconstitutional. This means, essentially, that the court has the ability to invalidate statues passed by the legislature, and thus, that it retains a tremendous amount of power. This concept is widespread, and is written into a number of constitutions. In some places, the power has had to be taken by the courts, as in the United States. See, Marbury v. Madison, 5 U.S. 137 (1803). Thirdly, common law judges have the ability to use discretion in their decision making. Two historical facts lead to this development. First, in jurisdictions where common law developed, judges were expected to use discretion to fill in the gaps between statutes. Additionally, the historic merger of courts of equity and law has lead to an increased ability of common law judges to utilize remedies from both traditions. Combined, these three factors mean that a common law judge has flexibility and authority to serve as a complement to, and check on, the legislature rather than a tool of lawmakers. In this, they serve a notably different function from their civil law counterparts. In stark contrast, under the civil law judges act as civil servants whose job is to apply the law, whose hierarchy as discussed is constitution, legislation, regulation and custom. Merryman, supra at 25. This may be a simplification, as some power exists, especially in jurisdictions with constitutions, to overturn laws. Merryman, supra at 38. However, it is not incorrect to say that, where common law judges have flexibility and discretion to shape law, civil law judges most certainly do not. And, in theory if not always practive, judicial decisions are non-binding. There is an area where the civil law court system has adopted parts of the common law approach, and that is in the area of judicial review. However, there are some major differences, and some background is necessary. When civil law was developing under the Romans and subsequently, the codes were intended to serve as the only necessary framework of law. This served some practical purposes as legislators attempted to be inclusive. However it could verge on the ludicrous with some codes, such as that of the Prussians under Frederick, stretched to over 17,000 articles. Merryman, supra at 39. However, even in the most elaborate codes, holes were predictably discovered by judges along the way. These came in the form of unclear provisions, questions of law that arose with no statutory answer, and statutes whose meaning changed while its terms remained constant. Merryman, supra at 43. Different jurisdictions handled these questions in different ways. For example, the Italian Civil Code of 1942 explicitly stated that no meaning could be attributed to statutes other than that intended by the legislature. However, the next clause stated that, if provisions were still unclear, that consideration may be given to similar or analogous provisions. Merryman, supra at 44. Aside from this slight leeway granted the judiciary by the legislature, other methods were developed to assist an already overburdened legislature in clarifying its laws. For example, in France, the legislature created an extension of itself in the Courts of Cassation. It is important to note that this was not a judicial body per se, but it did have the ability to quash incorrect interpretations of law. Merryman, supra at 40. The Germans took the idea of Cassation one step further, and gave its court of review the power to actually revise incorrect decisions. Merryman, supra at 41. These early developments correlate well to the idea of judicial review in common law jurisdictions, and have naturally lead to a greater acceptance of the interpretive role of ordinary judges. This is particularly true in Latin America, where the trend is toward judicial review of the constitutionality of legislation. In its current form in Europe, constitutional review has a slightly different shape than its common law counterpart. This is partly because the traditional mistrust of the “aristocratic judiciary” has lead civil law nations to put their own spin on the idea. For example, it has been noted that the Court of Cassation in France is actually an organ of the legislative branch. In another example, the Federal Constitutional Court in Germany is a “specialized tribunal empowered to decide only constitutional questions and a limited set of public law controversies. Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 3 (Duke University Press, 2nd ed., 1997). Interestingly, the German Constitutional Court serves another function that many common law supreme courts cannot; provide advisory opinions. Kommers, supra at 13. Therefore, though the United States Supreme Court may have more power to change laws, when asked by the legislature the German Court has more ability to shape how laws may be written. Constitutional review has made some of its strongest footholds in the courts of the former Soviet bloc. All of these former satellites have adopted constitutional courts despite not having them historically. Hermann Schwartz, The New Courts: An Overview, in European Legal Cultures 445, 449 (Volkmar Gessner, Armin Hoeland & Csaba Varga eds., Dartmouth Publishing Co.1996). According to Schwartz, these courts have more prestige and power than their ordinary court counterparts. They are also created by their respective constitutions, putting them above change by simple legislation. Most interestingly, some may even initiate constitutionality questions sua sponte. This is seen, among other places, in Hungary, Russia, and the Czech Republic. Id. However, the fact remains that even in jurisdictions with constitutional courts, there is no binding effect in their decisions. For example, the Austrians have gone so far as to ban precedent as a source of authority. Helen Silving, Stare Decisis in the Civil and in the Common Law, in European Legal Cultures, supra at 141, 143. However, Silving also notes that, whatever their ultimate jurisprudential authority, consistent decisions on the highest courts are in practice treated as undeniable sources of law in all civil law countries.” Silving, supra at 142. Even if the high courts are followed more closely in practice than in theory, authority is still more diffuse due to the fact that not all judges on high courts sit on them at all times. For example, France and Italy each have two courts for issues of ultimate appeal, while Germany has 5 and a two senate system. Kommers, supra at 18. Finally, because the idea of the writ of certiorari, or supreme court acceptance or denial of cases, is against the concept of judicial roles in civil law, courts may be called upon to hear thousands of cases, leading to time pressure and constraints. Mauro Cappaletti, The Doctrine of Stare Decisis and the Civil Law: A Fundamental Difference-or No Difference at All, in European Legal Cultures, supra at 146, 147. Summarizing Development of Law in Civil Law Systems The civil law was developed out of a desire to codify laws from different sources in ancient times. This was supplemented by existing laws and the ideas of commentators, often scholars. This has been structurally impacted by the idea of natural law during revolutionary times resulting in a system where judges may only interpret laws as developed by legislatures. Numerous methods were developed for filling in the inevitable gaps. This structure has evolved in modern times to often include overriding constitutions, and often the ability of varied bodies to determine whether new legislation fits within that framework. Even the decisions of these bodies, however, are not technically binding. This contrasts with common law systems, where legislatures write statutes, in code form or otherwise, that act as a framework for judges. These judges have the ability to interpret the laws themselves, determine whether they are legal in constitutional systems, and supplement statutes with case law in determining what the proper result is.