Chapter 6

Sources of Law and The Judicial Process in Civil Law Systems

Section 1. In General
There are 2 types of law : Primary = enacted law & custom ( sometimes general principles) Secondary = case law + writing of scholars of law

Called authorities & is never binding but has weight when primary sources are absent.

However, today case law is becoming very important due to the fact that primary law is interpreted by court. Enacted law : Laws adopted by : 1. Legislation 2. Executive/ administrative agencies 3. Popular referendum

Hierarchy of enacted Law

Constitution
In France, executive power is as powerful as legislative

Legislation Executive Decrees Administrative Regulations Local Ordinances

Principle source of law , growing body of separate statutes draws attention from codes.( civil etc.)

Federal state + rules concerning relationship of state to federal law + importance of international treaties/ conventions. (In Eu, international treaties/ law may take primacy over internal law) Therefore in France -> constitution of 5th Republic: Article 34 , enumerated law-making domain of parliament Article 37, matters other than those in article 34 are for executive Therefore, executive administrative jurisdiction is the rule , legislative is exception

Goes against doctrine of legislative supremacy in France.

Constitutional Council has power to review ONLY parliamentary legislation BUT council of state reviews executive legislation for conformity to Constitution

Custom : Is primary law but sometimes dismissed as of slight practical importance Spain -> (+ Spanish speaking countries) National civil Code doesnt apply in matters covered by customary law. Germany-> custom is in some case to prevail over written law France -> custom can supplement BUT NOT abrogate written law X custom plays greater role in Commercial / labor then Civil law General principles: Principles derived either from norms of positive law or from the existence of the legal order itself . AUTHORITIES: (secondary law ) CASE LAW : Emerges from necessity to interpret + apply written Law Civil law is influenced by Justinians claim that only sovereign can make a generally applicable rule ( today representative legislature ) Judicial pronouncement are not binding on even lower courts

CIVIL LAW decisions have de facto weight because: High courts tend to try to assure consistency in the output of the court therefore doesnt decide similar cases differently Influence of higher courts to lower courts is considerable Germany + holy : decisions of Constitutional courts on compatibility of statutes with constitution have force of law Settled line of case have great authority everywhere => Spanish speaking world, they are made binding by legislation => some legal theorists claim that it becomes eventually custom Many bodes of law have been built up by judicial decisions Eg. French tort law + French ( uncodified ) administrative law

DOCTRINE : The writing of legal science are authorities in Civil Law System Case law Vs Doctrine Case law assumes Consistency within a judicial Hierarchy Case law operated to settle the law Doctrine events its influence when there is no law on a point when in unsettled However , scholars have the task of organizing & analyzing case law therefore indirectly controls judges understanding of case law Weight attached to doctrine varies according to : Reputation of author Whether view look at & analyzes other respected writers

Scholarly opinions expressed in: -General + specialized treaties -Commentaries on codes -monographs + doctoral theses -Law review articles -case notes - Expert opinions in connection with litigation

Persistent doctrinal criticism may lead to abandonment of an established judicial position Since case law isnt binding, there isnt sophisticated + comprehensive citations for direct access to cases therefore Periodicals & treatises which collect & analyze most important cases became main source of research Computerized law finding devices affect civil law practice because now it is easier to find cases+ more info. On cases !

Interpretation Post-codification era scholars focused on : -language -structure - relations of the codes Therefore voluminous literature on interpretation Technique of interpretation became an art and it depends on the source of legal norm involved ( codes or statutes or decrees)

 All civil law systems have a method to help clear ambiguo us texts and fill the gaps in law

3 types of interpretation: 1. Language interpretation => linguistically most plausible meaning to be ascribed to the words used called law-finding because its meaning is automatic & unconscious 2. Interpretation when there is unclear/ambiguous provision Inconsistency => when laws contradict each other, or provision is general & ambiguous. 3. When there is a gap in a legislative text 4. when a law is completely silent on a matter - old law has become unsuitable Although characterized as interpretation, it is in reality an act of developing the law on their own. However, it is arguable the extent to which its openly acknowledged.

After adoption of codes, people thought they were self-sufficient and could be applied to all cases arising. The judge was thought of as someone who only interprets and derives solutions from the codes Interpretation was seen as the process of Enlarging the code our of Itself If a problem, not accounted for in codes, arose, judge would derive solution from code Although judges created judge-made norms, they were still not seen as lawmaking processes.

Interpretation was viewed as process of discovering the implied will of the legislature Interpretation involves : Grammatical analysis Logical Operation: reasoning by analogy Deriving an inclusive principle from a set of related sections In this formal interpretation, legislative history, called preparatory work, is important to determine implied will of legislature

BUT when all of the above lead to a dead end, the judge uses general clauses ( that are wide in their interpretation) to modify the effect of more rigid code provisions or to set the course of a new development. In France Article 4 of the Code forbids the judge to refuse a case because the law is silent on the matter The chief drafter of the Civil code, Portalis, said: 1. legislature could not and should not try to foresee everything 2. the science of the judge is to put the principles into actionto study the spirit of the law --- and not to expose himself to the risk of being alternatively slave and rebel The court of Cassation cryptic opinion style: 1 long paragraph with recital of applicable legal provision brief description of facts therefore appears to emerge from a mechanical processes of applying the law to the facts. This uninformative nature led to many criticism today. Genys libre recherch scientifique : He argued that the judge should be free from limitations of textual exegesis but should look at the entire social & economic context Not just custom, doctrine and case law. Some codes acknowledged relation between interpretation + legislation: Austrian civil code : directs the judge to look at principles of natural law if problems arose. (1811) Spanish civil code (1888) : deficiencies in law should be resolved by referring to general principles of the law German Civil code: they believed that their code included these methods of interpretation but when problems arise, judge should look out general principles + principles that arise from the spirit of legal order . Italian law : Article 12 says this as well. Swiss Civil code (1907) Article 1 if the judge can find no law in a matter he must decide according to : customary law ; if it fails; he would become a legislator and adopt a rule that goes with legal doctrine+ judicial tradition.

Germany today had developed an opinion style similar to US because it pays attention to facts and exposition of legal process of reasoning to arrive to the decision . they exercise their creative function but always conforming to basic principles of legal order.

Therefore we can say that interpretation is often a form of law-making but to what extent is it ? Stability and Growth Every legal system needs a mechanism to promote: -Predictability -Flexibility - Stability - Growth In common law : Predictability + Stability are provided by the doctrine of stane decisis; Flexibility + Growth are provided by rules of equity and tecniques for limiting precedent. In Civil law : Predictability + Stability are provided by the written law and Flexibility + Growth is provided by general clauses tempering rules + interpretation.

However, statutory law made case law less central to common law and codes less central for Civil law .