TEXT 5 the transformation of english legal science
Part III
On the one hand, the rules and principles of English law of the late seventeenth and early to mid-eighteenth centuries may thus be said to have constituted its internal science. The new treatise literature of that period, on the other hand, generated by legal scholars, not only recapitulated the internal legal science but also analyzed, classified, systematized, and evaluated English legal institutions according to criteria drawn partly from within but also partly from outside those institutions, and thus may be said to have constituted an external science of English law. The frequent references to "legal science" made in that literature did not, however, expressly distinguish between its internal and its external aspects. William Blackstone, for example, in initiating in 1753 the first course on English law ever offered in an English university, said that "law is to be considered not only as a matter of practice but as a rational science," grounded on "general principles" inherent in the law itself, and that it is the task of the legal scholar to discern those principles. At the same time, Blackstone followed a method of analysis and synthesis of English law that had been introduced three generations earlier by Matthew Hale, a method that was drawn partly from philosophy, theology, and the natural sciences, as well as from the entire body of Western legal scholarship. Black-stone referred indirectly to that external aspect of the science of law in writing that the teaching of English legal science had been "committed to his charge to be cultivated, methodized, and explained," and that English law should be studied "in a solid, scientific method." Indeed, if only the internal mode of operation of the English legal system were to be taught, without external theoretical analysis and evaluation, it would hardly make sense to teach it in a university course designed, as he said, as part of the general education of "every gentleman and scholar."
It must also be noted that the authors of the first treatises on English law were not professors but judges and practicing lawyers, and their treatises in fact strongly affected the fundamental structural and institutional changes in the English legal system that took place in the late seventeenth and early to mid-eighteenth centuries. Indeed, a principal source of the differences between the new English legal theory and the legal theory that had prevailed previously in the West was the fact that the earlier legal theory was primarily professorial in its origin and nature, whereas the new English legal theory was primarily judicial in its origin and nature. The English Revolution exalted the role of the legal profession as guardian not only of the positive law but also of legal science. This fact, too, contributed to the integration of the internal and external aspects of English legal science— its method in the narrower sense and its theory in the broader sense.
TEXT 6 JUDGES PART I
We in the common law world know what a judge is. He is a culture hero, even something of a father figure. Many of the great names of the common law are those of judges: Coke, Mansfield, Marshall, Story, Holmes, Brandeis, Cardozo. We know that our legal tradition was originally created and has grown and developed in the hands of judges, reasoning closely from case to case and building a body of law that binds subsequent judges, through the doctrine of stare decisis, to decide similar cases similarly. We know that there is an abundance of legislation in force, and we recognize that there is a legislative function. But to us the common law means the law created and moulded by the judges, and we still think (often quite inaccurately) of legislation as serving a kind of supplementary function. We are accustomed, in the common law world, to judicial review of administrative action, and in the United States the power of judges to hold legislation invalid if unconstitutional is accepted without serious question. We know that our judges exercise very broad interpretative powers, even where the applicable statute or administrative action is found to be legally valid. We do not like to use such dramatic phrases as "judicial supremacy," but when pushed to it we admit that this is a fair description of the common law system, particularly in the United States.
We also know where our judges come from. We know that they attend law school and then have successful careers either in private practice or in government, frequently as district attorneys. They are appointed or elected to judicial positions on the basis of a variety of factors, including success in practice, their reputation among their fellow lawyers, and political influence. Appointment or election to the bench comes as a kind of crowning achievement relatively late in life. It is a form of recognition that brings respect and prestige. The judge is well paid, and if he is among the higher judicial echelons, he will have secretaries and research assistants. If he sits on the highest court of a state or is high in the federal judiciary, his name may be a household word. His opinions will be discussed in the newspapers and dissected and criticized in the legal periodicals. He is a very important person.
TEXT 7 JUDGES PART II
This is what common lawyers mean when they talk about judges. But in the civil law world, a judge is something entirely different. He is a civil servant, a functionary. Although there are important variations, the general pattern is as follows. A judicial career is one of several possibilities open to a student graduating from a university law school. Shortly after graduation, if he wishes to follow a judicial career, he will take a state examination for aspirants to the judiciary and, if successful, will be appointed as a junior judge. (In France and a few other nations, he must first attend a special school for judges.) Before very long, he will actually be sitting as a judge somewhere low in the hierarchy of courts. In time, he will rise in the judiciary at a rate dependent on some combination of demonstrated ability and seniority. He will receive salary increases according to pre-established schedules and will belong to an organization of judges that has improvement of judicial salaries, working conditions, and tenure as a principal objective.
Lateral entry into the judiciary is rare. Although provision is made in some civil law jurisdictions for the appointment of distinguished practicing attorneys or professors to high courts (particularly to the special constitutional courts established since World War II), the great majority of judicial offices, even at the highest level, are filled from within the ranks of the professional judiciary. Judges of the-high courts receive, and deserve, public respect, but it is the kind of public respect earned and received by persons in high places elsewhere in the civil service.
One of the principal reasons for the quite different status of the civil law judge is the existence of a different judicial tradition in the civil law, beginning in Roman times. The judge (iudex) of Rome was not a prominent man of the law. Prior to the Imperial period he was, in effect, a layman discharging an arbitral function by presiding over the settlement of disputes according to formulae supplied by another official, the praetor. The iudex was not expert in the law and had very limited power. For legal advice he turned to the jurisconsult. Later, during the Imperial period, the adjudication of disputes fell more and more into the hands of public officials who were also learned in the law, but by that time their principal function was clearly understood to be that of applying the emperor's will. The judge had no inherent lawmaking power. He was less limited in medieval and pre-revolutionary times, when it-was not unusual for continental judges to act much like their English counterparts. That, indeed, was the problem: they were interpreting creatively, building a common law that was a rival to the law of the central government in Paris and even developing their own doctrine of stare decisis.
With the revolution, and its consecration of the dogma of strict separation of powers, the judicial function was emphatically restricted. The revolutionary insistence that law be made only by a representative legislature meant that law could not be made, either directly or indirectly, by judges. One expression of this attitude was the requirement that the judge use only “the law” in deciding a case, and this meant, as we have seen in Chapter IV, that he could not base his decision on prior judicial decisions. The doctrine of stare decisis was rejected. An extreme, expression of the dogma of strict separation of the legislative and judicial powers was the notion that judges should not interpret incomplete, conflicting, or unclear legislation. They should always refer such questions to the legislature for authoritative interpretation. It was expected that there would not be very many such situations, and that after a fairly brief period almost all the problems would be corrected and further resort to the legislature for interpretation would be unnecessary. (The history of the retreat from this position will be described in the next chapter.)
TEXT 8 JUDGES PART III
The picture of the judicial process that emerges is one of fairly routine activity. The judge becomes a kind of expert clerk. He is presented with a fact situation to which a ready legislative response will be readily found in all except the extraordinary case. His function is merely to find the right legislative provision, couple it with the fact situation, and bless the solution that is more or less automatically produced from the union. The whole process of judicial decision is made to fit into the formal syllogism of scholastic logic. The major premise is in the statute, the facts of the case furnish the minor premise, and the conclusion inevitably follows. In the uncommon case in which some more sophisticated intellectual work is demanded of the judge, he is expected to follow carefully drawn directions about the limits of interpretation.
The net image is of the judge as an operator of a machine designed and built by legislators. His function is a mechanical one. The great names of the civil law are not those of judges (who knows the name of a civil law judge?) but those of legislators (Justinian, Napoleon) and scholars (Gaius, Irnerius, Bartolus, Mancini, Domat, Pothier, Savigny, and a host of othernineteenth- and twentieth-century European and Latin American scholars). The civil law judge is not a culture hero or a father figure, ashe often is with us. His image is that of a civil servant who performs important but essentially uncreative functions,
It is a logical, if not a necessary, consequence of the quite different status of the civil law judge that he is not widely known, even among lawyers. His judicial opinions are not read in order to study his individual ways of thinking and his apparent preconceptions and biases. Although there are exceptions, the tendency is for the decisions of higher courts in civil law jurisdictions to be strongly collegial in nature. They are announced as the decision of the court, without enumeration of votes pro and con among the judges. In most jurisdictions separate concurring opinions and dissenting opinions are not written or published, nor are dissenting votes noted. The tendency is to think of the court as a faceless unit.
The result is that although there is a superficial similarity of function between the civil law judge and the common law judge, there are substantial disparities in their accepted roles. In part the contemporary civil law judge inherits a status and serves a set of functions determined by a tradition going back to the index of Roman times. This tradition, in which the judge has never been conceived of as playing a very creative part, was reinforced by the anti-judicial ideology of the European revolution and the logical consequences of a rationalistic doctrine of strict separation of powers. The civil law judge thus plays a substantially more modest role than the judge in the common law tradition, and the system of selection and tenure of civil law judges is consistent with this quite different status of the judicial profession.
The establishment of rigid constitutions and the institution of judicial review of the constitutionality of legislation in some civil law jurisdictions has to some extent modified the traditional image of the civil law judge. In some jurisdictions (e.g. Austria, Italy, Germany, and Spain), special constitutional courts have been established. These special courts, which are not part of the ordinary judicial system and are not manned by members of the ordinary judiciary, were established in response to the civil law tradition that judges (i.e. ordinary judges—the modem successors of the Roman iudex and the civil judges of the jut commune) cannot be given such power.