Judges and Lawmaking Authority: The New Brazilian Civil Procedure Code and the Limits of How a Civil Law Judge Could Act As a Common Law Judge

Abstract

This article intends to compare two distinguished legal systems, by the perspective of the role of judges and how this officer of the court applies and interprets the law. This paper focuses on how and when judges are allowed to create the law within their judicial decisions. In this sense, we analyze how application and interpretation of the law fit within the legal concept of discretion and, in case of adopting the possibility in which the judicial authority carries out this prerogative. Also, it is taken into account how different judicial discretion comes from legislative and administrative discretion. Taking law application and interpretation as an exercise of judicial discretion is a key element to allow us to identify the way the judges create the law in civil law and common law systems. This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs.