The Civil Law Legal Tradition

Abstract

This chapter traces the origins and development of the civil law legal tradition, which assigns to judges only a mechanical, highly constrained form of decision-making. The civil law legal tradition is characterized globally by a historical reliance on Roman law; a modern rationalist code and no body of judge-made case law under the code; textualism and formalism; and the absence of jury trial and an inquisitorial approach to civil and criminal procedure. The civil law tradition allows judicial review, which has been seen as being inherently political, to be exercised soley by a separate institution, called a Constitutional Court, which alone interprets and enforces the Constitution and which is de facto the most important court in the country, even though de jure there are coequal courts of cassation and councils of state. Traditionally, judges received little social deference and were low on the hierarchy of status in civil law countries, whereas scholars and codifiers came first. The civil law legal tradition conceives of the separation of powers in a very wooden, ahistorical way that precludes judges from ever making policy by deciding administrative law and constitutional law cases. It was therefore necessary to create powerful constitutional courts as a specially chosen fourth branch of government in order for judicial review to work in civil law countries. The chapter conclude by looking at the court systems in civil law countries, which typically have three supreme courts: 1) a constitutional court; 2) a court of cassation; and 3) a council of state.