Jonathan Lowry, WLO tutorial group D Professor A. Lewis. World Legal Orders Essay 1. 'In Civilian systems the judge is simply the mouthpiece of the law'. Discuss. Civil and common law systems are divergent in many ways the predominant of which can bee seen as the development and sources of law. Whilst the common law derives its primary source of law from case law, legislation is seen as supreme in civil systems.
This characteristic of the Civilian systems restricts the role of the judiciary in creating law and therefore leads to the view that judges are simply 'the mouthpiece of the law. ' To evaluate how accurate this claim is one must analyse the effect of codification, the actual role that the courts play in discretion of legislation and the judicial process by which decisions are reached. We can draw the conclusion that in the civil law systems legislation is the primary source of law. Law is 'characteristically a body of rules enacted by the state, to be found in codes and... legislation.
'1 This is clearly contrasted with the common law approach in that though legislation is seen as having the final authority, it has traditionally been accepted that the decision of the courts, or case law, forms the primary source of law. This difference has a direct effect in the approaches undertaken if the two legal systems in the interpretation of legislation. Whist the English courts and common law system sees legislation as the general principle by which the courts will apply deductive reasoning to interpret the intentions of parliament a Civil law system would argue that leglislation is the will or parliament in itself.
We can therefore see that if essence legislation represents the will of the state and 'the function of the judiciary as an organ of the state is to give effect to that will'2 In order for such a opinion to be true, civilian law systems must incorporate legislation which clearly outlines the intentions of the state which should be upheld. This has manifested itself as a key feature of civil law systems in codification of the law. The French Napoleonic code of 1804 and the German civil code of 1900 are seen as the most influential national civil codes.
They share similar characteristics in that they aim to be comprehensive, authoritative and systematic. 3 These characteristics give weight to the incorporation of a sharp separation of powers of the law making abilities of the state and the role of the courts in solely giving effect to them. It directly follows that there could no absences in the code for this would lead to judge made law. It is this key feature which creates the opinion that the role of the judiciary is limited solely to 'voicing the law'.
Whilst from the outset the process of codification clearly undermines the abilities of judges in terms of discretion and law making capabilities, an analysis of the French judiciary and the role that judges play in the proceedings of court indicate otherwise. Whilst in the common law system of England the facts are established through interview and elicited by the adversarial process, in the civil law system of France the facts are discovered by the court itself. This confers onto the judge discretionary powers in that the proceedings are governed by the judges and the role of lawyers are much more limited that that of the common law system.
We can see now that the role of the judge is clearly not only limited to voicing the law, in that by leading the investigation of the facts of the case the judge plays an active role in determining the principles of law involved and discretion in interpreting and forcing the facts to fit the legislation of the Code Civil. We must next analyse the authority of case law and the discretion of judges in their judgements. It has already been established that the codes of civil law systems aim to confine the law-making functions of the courts.
We can however see that in fact there exists a vast body of judge made law. In the French Civil system the courts were required to ensure that every decision was 'motivated'. Although judgement could not incorporate the ratio decidendi of the common law systems, for this would contravene the view that the courts should only give effect to the law rather than draw principles form the facts, the courts have adapted a form of judgement which meets the 'motivation' requirement which incorporates discretion and deductive reasoning.
The codes of France although purport to be complete and concise are general in nature and thus simply station the legislative act as the reasoning upon which a decision was based would not satisfy the proviso that the 'motivation' behind decisions was conferred. Therefore, syllogistic reasoning applied to the facts from which decisions can be logically derived4 is included in the decisions of judges. The incorporation of deriving decisions from various principles is where the creative law making power of judges resides5 and it is on this basis that judge-made law was created.
Although it is accepted that decisions of the court must play a large part defining the law the mechanistic view of the role of the courts is still encouraged, both the textbooks and the form of judgement, and this by not referring to arguments which lead to governing principles that courts are in essence concealing the creative process. 6 We can therefore conclude that it can not be considered that the role of the judge in a civil law system is confined to that of being simply a 'mouthpiece' of the law.
Whilst it is evident that the scare of the abuse of power by judges in pre-revolution France created an environment where hostility towards case law exists, and continues to exist, in reality the courts possess wide-ranging discretionary powers and it is masked by the mechanistic judgements and style of the courts. Evidence of this can be seen in the Code civil under the law of torts which is summarised in only five articles. The law of torts however continues as an expansive area of the law and is largely a creation of the courts.
Whilst we have clearly demonstrated that judge-made law in civil law systems exists and that the judge in not merely a 'mouthpiece' of the law, the incidence that binding precedent in civil law systems is not a rule indicates the strength and weight that is attributed to case law. The consequence of not having a principle of binding precedent is most obviously that it can not form the rationale as justification for judgements.
Less importantly but still a consequence that should be considered is the attitude of judges in that in cases where judges disagree with previous courts decisions, should he/she consider it an anathema to the code they will ignore it and judge on their rationale. Whilst the notion that no rule of binding precedent exists supports the mechanistic view of the judiciary, in the French system we can identify another means by which authority of decisions can be established.
In the French system lower courts normally follow the jurisprudence of the Cour de cassation. In the French legal system jurisprudence constandt is given precedent and is defined as a concordant series of decisions. 7 It follows that it is in the power of the judges to create principles through a series of similar decisions and thus creating law. Another distinction between the two legal systems is that of the premise that civil systems although purport to be clear and detailed are much more general and contain less law that common law systems.
This is simply a product of the fact that the common law system is ever evolving, always updated by new decisions and therefore extremely detailed in content whilst in civil systems codes remain largely un-edited, in that changes to the law and updates are much less frequent than its counterpart. 8 This characteristic is exemplified by the French code within the area of contract law, where the broad rule that a mistake nullifies an agreement if it concerns the 'substance' of the object to which the agreement relates.
9 The question arises what constitutes 'substance' and when this is paired with the mechanistic system of judgements in that the courts are not required to justify its interpretation of the word, or relate to previous decisions of the court we see the scope of judicial discretion that is granted to civil law judges. We can therefore conclude that whilst in the common law system the rule of binding precedent restricts the scope and decisions of judges within the hierarchy, the French or civil law judge though paradoxically should be confined to the rigid parameters of the written law, is often granted much wider discretionary power.
Coupled with the recognition that large areas of the law in civil systems are largely unwritten and therefore the role of the courts in stating the law in these areas are important and the role of the judges themselves in the collection of evidence in trials we can see that the role of the judge can not be simply restricted to being the 'mouthpiece of the law'.
Having stated this, the scope and judicial discretion granted can not be compared with that of the common law judges for it must be recognised that to its very foundation, as exemplified in the code civil, civil systems embody the separation of powers which is an ultimate limit to the power of the judiciary.
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