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Civil Law and Common Law Judges

Different countries have different legal traditions, and the role of judges changes accordingly. Scholars refer to the main legal traditions as either Civil or Common law traditions, two systems that have a different evolution which is reflected in the way justice is administered by judges.


This essay aims to analyze and compare the differences between the two judicial systems with particular attention devoted to the role of judges in legal proceedings. The first part of the essay will explore the historical evolution of the civil and common law jurisdictions. Subsequently, the essay will turn to the role of the judge and the way the differences are shown through the style of official decisions. The essay will then consider the judicial precedent and its different roles in the two systems. The essay will finally be devoted to conclusions.


Civil Law System Across the Years

Civil law is a legal tradition that is nowadays widely spread across Europe, Asia, Africa, and America (Apple and Deyling, 1990). Its origins trace back to the second century B.C. of the Roman Republic. The name of the legal tradition is in fact based on the law of the Roman Republic, and then Empire, jus civile. Jurists held the prominent role, experts of the law from the upper classes who gave legal advice to the parties and even to judges (Apple and Deyling, 1990). Judges had in fact a temporary and nonprofessional role in the Roman legal framework, only appointed to solve individual cases and with no solidification of their decisions for future controversies. The Romans also put emphasis on legal principles and codified laws. In fact, the Corpus Iuris Civilis, known as the Justinian Code, was issued by Justinian I between 529 and 534 to create the sole source of written law (Alburn, 1959). During the Middle Ages, jurists retained much of the power in the legal context and the first universities of law were founded in Italy (Apple and Deyling, 1990). Codification remained a significant trend in Civil law systems as shown by the issuing of the Code Napoléon in France and Bürgerliches Gesetzbuch in Germany (Watkin, 1999).


Figure 1: The Corpus Iuris Civilis contained in a manuscript published in 1776 (Yale Law Library)

Common Law System Across the Years

The Common law tradition emerged in England between the 11th and 12th centuries, after the Norman Conquest (Langbein, 2009). The materials of the Common law were the customs of local communities and different people (Milsom, ). England was in fact divided into smaller counties with their own courts, making the systems fragmented and not at all centralized. Judicial opinions were of the utmost importance and as American Justice Oliver Wendell Holmes Jr. stated, “judges do and must legislate” (Southern Pacific Co. v. Jensen, 1917). During the reign of Henry II, decisions regarding individual cases were in fact shared and made circulating across the country (Budiansky, 2019). It was thanks to the Magna Carta in 1215 that the Court of Common Pleas was created, and judicial opinions acquired even more importance with law reports with precedent opinions circulating freely (Winfield, 1925). Common law and its features then spread across the globe by means of the many colonization campaigns initiated by English monarchs and acquired the status of one of the most well-known legal traditions.


Civil Law and Common Law Judges: A Comparison

Judges in Civil law do not have predominance over the law-making process as judges from Common law jurisdictions have. Their role, as illustrated above, differ from a historical perspective that is reflected in nowadays systems. As the French philosopher Montesquieu declared the judge is considered as the “[…] mouth which pronounces the words of the law […]” (Montesquieu, 1748). His theory of the separation of powers into three branches, notably legislative, judiciary, and executive, meant that judges should be called to apply the law without having political powers (Cappelletti, 1985). Furthermore, the rule of law entails that the principle of predictability should be respected. For this reason, Civil law judges are meant to apply existing laws in a consistent and uniform manner. The light motive seems to be that if the judge of a particular case were to be replaced by another judge the outcome of the case and the final decision would not be the same.


On the other hand, the same cannot be said for Common law judges. In England there has never been such harsh criticism toward judge-made law and the doctrine of the separation of powers does not find a strict application in England and other Common law countries. Judges are instead considered legitimate to protect individual rights and freedoms (Cappelletti, 1966).


Figure 2: Portrait of French philosopher Montesquieu (Jacques-Antoine Dassier, 1728)

From Substance to Style

Civil law judges, as already stated, do not make the law and are called to apply it blindly. The judge in Civil law jurisdictions does not sign opinions, demonstrating the objective principle that is at the basis of the Civil law judiciary power (Edlin, 2016). Moreover, decisions tend to be shorter and more concise, leaving no space for the personal views of the judge who has issued the decision. The decision should contain a summary of the facts and reference to the laws and provisions which regulate the practical circumstances. Decisions issued in Common law jurisdictions do not meet the same characteristics. Decisions are signed by the judge who has made said decision and who takes full responsibility, and recognition, for it. Moreover, decisions are lengthy and with multiple personal remarks made by the judge. The principle of impartiality is not in fact understood as prohibiting subjectivity in the actions of judges. Common law judges can, and are even requested, to give their personal opinions on the controversies to be solved while still being impartial to the circumstances (Edlin, 2016). In Common law jurisdictions, judges’ opinions are actually kept and shared because the thought process of every judge is recognized as a fundamental element of the judicial system (Posner, 1990).


The Precedent: Binding or Non-Binding?

The different role given to judges in the two systems affects also the importance and influence that precedent decisions issued by the judiciary has on the legal framework.

Among the sources of law of Common law traditions, there is mention of precedents: prior decisions to similar cases (Friedman and Martin, 2011). The same cannot be said for Civil law traditions in which the judge should only make reference to existing laws (Troper and Grzegorczyk, 1997). This is also highlighted by Article 113 of the Italian Code of Civil Procedure which provides that the judge shall follow and apply the law. This entails that precedents have a much greater impact and influence on Common law judges' decisions. In fact, the English doctrine of precedent requires judges to always consider prior decisions and adhere to them, underlining the case-law approach of Common law traditions (Cross and Harris, 1991). The doctrine of precedent, also referred to as stare decisis, first appeared in England at the end of the 16th century and became fully established as a fundamental principle by the beginning of the 19th century (Fon and Parisi, 2006). In Common law systems a more relaxed version of the stare decisis doctrine exists known as jurisprudence constante (Fon and Parisi, 2006.) However, precedent decisions are binding only when the approach is sufficiently uniform and accepted by multiple courts (Lambert and Wasserman, 1929). As a result, decisions are given a secondary role in Common law jurisdictions with less emphasis put on single decisions and no binding force is generally attributed to them.


Figure 3: Map of different legal traditions (University of Ottawa)

Conclusions

This article has illustrated the differences between the role of judges in Civil law and Common law traditions. The different role traces back to historical developments of the two legal traditions and is still relevant nowadays. The role of the Civil law judge is characterized by strict adherence to the law as the judge is called to apply the law and only the law. On the other hand, the Common law judge is free to give personal remarks in judgments that are considered more subjective than Civil law decisions, while still respecting the principle of impartiality which is common in both jurisdictions. The different role is also reflected in the stylistic features of decisions as well as in the influence attributed to precedent decisions. The latter finds a primary role among the sources of law in Common law traditions whereas are only considered secondary sources in Civil law countries. Overall, the two systems are highly different when it comes to how justice is rendered. It would be therefore fair to assume that the role of judges in the two systems represents one of the key differences between the two major legal traditions of the world.


Bibliographical References

Alburn, C. R. (1959). Corpus Juris Civilis: A Historical Romance. American Bar Association Journal, 45(6).


Apple, J. G. and Deyling, R. P. (1995). A Primer on the Civil-law System. Federal Judicial Center.


Budiansky, S. (2020). Oliver Wendell Holmes: A Life in War, Law, and Ideas. W W Norton & Co Inc.


Cappelletti, M. (1985). Repudiating Montesquieu? The Expansion and Legitmacy of "Constitutional Justice". Catholic University Law Review 35(1).


Cross, R and Harris, J, W. (1991). Precedent in English Law. Clarendon Press.


Fon, V and Parisi, F. (2006). Judicial precedents in civil law systems: A dynamic analysis. International Review of Law and Economics 26(4).


Friedman, B and Martin, A, D. (2011). Looking for Law in All the Wrong Places: Some Suggestions for Modeling Legal Decision-making in Charles Gardner Geyh (eds.), What’s Law Got To Do With It?: What Judges Do, Why They Do It, and What’s at Stake. Stanford University Press.


Edlin, D. E. (2016). Common Law Judging: Subjectivity, Impartiality, and the Making of Law. University of Michigan Press.


Homburger, A. (1972). Review of Judicial Review in the Contemporary World, by M. Cappelletti. University of Pennsylvania Law Review, 120(3).


Lambert, E and Wasserman, M. J. (1929). The case method in Canada and the possibilities of its adaptation to the civil Law. Yale Law Journal 39.


Langbein, J, H, Lerner, R, L and Smith, B, P. (2009). History of the Common Law: The Development of Anglo-American Legal Institutions. New York: Aspen Publishers.


Milsom, S, F, C. (2014). Historical Foundations of the Common Law. Butterworth-Heinemann.


Posner, R, A. (1990). The Problems of Jurisprudence. Harvard University Press.


Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917).


Troper, M and Grzegorczyk, C. (1997). Precedent in France in D. MacCormick, R. Summers (Eds.), Interpreting precedents: A comparative study. Dartmouth Publishing Co.


Watkin, T, G. (2017). An Historical Introduction to Modern Civil Law. Taylor & Francis.


Winfield, P. H. (1925). The Chief Sources of English Legal History. Harvard University Press.

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Sofia Grossi

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