A cura di Edoardo Gabriele Vacca-
1. Introduction – The judiciary power was chronologically the last to be intended as independent, and was historically tightly linked to the executive. Once it had gained the equality with the other State powers, the judiciary strengthened its powers even more, fulfilling not only the traditional adjudicative function, but in several cases, also a substantially legislative one. Throughout the years the world experienced the “ascendency” performed by the judiciary in every legal family: Common Law, Civil Law and Socialist Law. The former has surely been experiencing a formal “primacy of the judiciary” for at least two centuries; the second one is, for several reasons, recently facing an increase of the powers given to judges under the influence of “mixed” international legal systems, convergence and international consensus; the latter is experiencing a different type of ascendency and it is affected by it only in its transitioning members, which are trying to combine the shift from the socialist to the open market economic layout with some other minor changes in the legal and political field.
2. “Primacy” of the Judiciary in the Common Law Legal Family – The Common Law family was chronologically the first to experience the ascendency of the judicial power. Judges’ main power has historically been the judicial decision-making over disputes. However two main events that occurred in the Common Law history certified the status of the judiciary power as primus inter pares: the acceptance of the stare decisis doctrine and the “Marbury v. Madison” case. The ascendency of judiciary became a real primacy since judges could add a legislative power (through the binding precedent) and, moreover, an overruling power (through judicial review) to their traditional functions. At the outset no legal obligation existed for the judges to conform their judgements to precedent similar cases. This principle gradually emerged in the jurisprudence and, in 1670, Judge Hale was the first one to utilize the stare decisis formula, loaned from the Latin maxim “stare decisis et non quieta movere”. In the XVIII century, with the publication of reliable law reports, the stare decisis custom began to be regarded as binding. In 1873 and 1875 the Judicature Acts positively issued the binding precedent obligation in the United Kingdom and it was gradually extended to the thirteen American colonies. The judicial review, on the other hand, originated in the United States. The Marbury v Madison case left an indelible mark in the judicial history and from that moment the principles spread all over the Common Law family, except for England because of its “flexible constitution”. The judicial power in American-derived institutional layouts is furthermore increased because of its features: diffuse model and high accessibility. It means that every time a judge has to apply a norm in order to solve a case, he or she has the power to assess its constitutionality and decide whether to apply it or not. This function belongs to every judge, from the first instance to the Supreme Court, but due to the stare decisis theory a judgement from a higher court binds the lower ones. So, even though the rule is not abrogated or deleted from the set of rules, it is unlikely to be applied again. This is why case law plays such an important role in these legal systems and it is considered more than “relevant jurisprudence”. The absence of codes gives great decision-making and discretionary powers to judges that deal not only with interpretative matters but also with legislative lacunas to fill. Common Law statutory provisions play a different role than the ones provided in Civil Law codes because they are rather consolidations of previous principles and case law than positive sets of new rules.
Another power source for the judiciary comes from judicial selection. Common Law judges, chosen from the most expert lawyers, can be appointed by the political authority or elected by the population in a way that confers further legitimacy for the exercise of their functions. These features, that with a level of generalisation can be considered proper of the whole Common Law family, differ in various points from their equivalents in the Civil Law tradition that will be examined in the next paragraph. They are so inherent and distinctive of the Common Law that it is possible to assert that this legal family is no longer experiencing a dynamic situation of ascendency, but rather a static situation of clear primacy from centuries.
3. “Ascendency” of the Judiciary in the Civil Law Legal Family – The judiciary had a very different evolution in the Civil Law tradition. The role of the judges was enormously affected by the French revolution and its principles. Pursuant to Montesquieu thinking and then to the Jacobin ideology, their functions were modified in order to fit the definition of “bouche de la lois”. France still faces this constitutional choice in its judicial review layout. A century later, Germany devised its new institutional layout during the Weimar period and affected the nearby States with its new legal tradition. These are the two main Civil Law traditions. However some States, Italy for instance, opted for a legal system that merged the French and the German tradition, organising the codes in a way that reflected the Code Napoleòn model, but following the German Verfassungsrechtlichen Rectslehre. Bearing in mind the differences between these legal systems and relying on generalisation, it is possible to find a common denominator for the Civil Law family. Contrary to the Common Law, judgements are just judicial tools that are not included among the sources of law. There is no space for case law because of the lack of an equivalent to the stare decisis doctrine. On the other hand this is mediated by the principle of legality. For these reasons, the first power among equals in the Civil Law legal family is deemed to be the Legislative. The judicial selection in these legal systems does not require practical experience, but a more theoretical one, usually acquired in legal schools. The judges achieve their position through public exams and the other authorities appoint only the highest members of the constitutional tribunals. They are never elected and they lack political legitimacy. Additionally they are deemed to be more independent than the elected or appointed ones. Furthermore the judiciary has been politically and legally bound for historical reasons and this is reflected in the little availability of judicial review compared to the Common Law one. Independently from the availability procedures, the majority of the States chose a concentrated model, with a specialised court. However, the Civil Law tradition is currently facing an “ascendency” of the judiciary, too. Codes are slow and difficult to amend, because even though they are an ordinary law, they are composed by thousands of provisions. The emanation of new laws takes time to be discussed and passed; the legislative and the executive are often “inert” on various matters and the legal system often does not succeed in following the major social changes. This is why the Civil Law family is deemed to lack flexibility. It is possible to say that in the trade-off between certainty and flexibility, Civil Law legislators chose for the former. Nevertheless the ascendency is probably leading to a middle avenue where this will not be considered as a trade-off any more with legal systems that could somehow provide for both. Globalisation led to a growing importance of comparative law and prompted convergence among legal systems. Common Law jurisdictions are writing down statutes; the Civil Law family is gradually giving more powers to the judges and is sometimes allowing case law in its legal systems, just like what happened with the new Dutch Civil Code in 1992.
Other Civil Law legal systems are trying to smother the lack of flexibility with more incisive interpretative judgements from general courts and constitutional tribunals, in particular when new juridical situations are not disciplined. A similar situation can take place because of the multitude of interlinks between States in international legislations (general, such as the European Community and ASEAN; or sectorial, such as the ECHR). In these cases a “mixed” international legal system is devised, because of the presence of both Civil and Common Law countries, promoting further legal convergence. In order to be consistent with these provisions, the legislature should sometimes transpose international law with domestic remedies. When it is inactive, it is judges’ obligation to apply the international norm. This is one of the ways used by Civil Law judges to exercise a subsidiary legislative power. Judges also have a further orientation power when it comes to recognise foreign proceedings, focusing convergence brought by consensus and comparative law.
4. “Ascendency” of the Judiciary in Transitioning Legal Systems – The pure Socialist institutional layout usually manifests collegial juridical authorities. Judges are elected by the population for a certain amount of time determined by the popular assemblies. They are politically responsible towards the organ that elected them, which has the discretion to revoke the office. Usually the candidacies are presented in a similar way to the other public offices. For the high legitimation and the important role played by judges in the Socialist countries, it is not possible to consider a quantitative relevant ascendency of the power. The ascendency that transitioning States are experiencing regards their shift to a new institutional model that can somehow suit their major economical changes. Globalisation brought convergence mainly on the economical and social field, but often those shifts found a correspondence in minor institutional and legal ones. They do not only reflect law’s ancillary job in prompting economical reforms, but also real institutional modifications. As endorsed by part of the doctrine, different “rules of law” can be found all over the world. For instance, in the Asian transitional realities we will find “with a high level of generalisation” a common “(East) Asian Path” based on the emphasis on economic growth rather than civil and political rights during the initial stages of development followed by the establishment of a system that meets the requirements of a “thin rule of law”. One of the abovementioned institutional modifications regards the role of the judges, indeed. The ascendency the judiciary is experiencing is due to the recognition of its role and to the steps of detachment from the other political powers. This is another factor that points to the gradual neglect of the “rule by law” model in order to walk the “Asian path”. “Courts are considered crucial to economic development not only because they resolve commercial disputes, but also because they allow citizens to bring actions to check bureaucratic and legislative power”. Courts’ main purpose is to issue effectively relevant judgements. With regard to this matter an academic dispute rose on the dichotomy between judicial power and judicial independence. Judicial independence is surely a founding pillar of the western concept of “rule of law”, but probably judicial power fits the Asian model better. International banks and multilateral agencies, worried about the interferences of powerful parties or executives, prompt independency, while part of the doctrine endorses the judicial power view seeing the politics as a useful tool to ensure effectiveness. Whichever view is taken, the ascendency is already easy to denote from the focus given to the judiciary and its effectiveness during the transitional process.
5. Conclusion – The judiciary is surely one of the legal sectors more affected by globalisation. This further increases its responsibilities. Another important issue, common to every tradition, is the decision on whether to allow foreign law and international consensus to affect domestic proceedings. Responsibilities and powers often go together and this case is no exception.
To sum up, ascendency and primacy of the judiciary in the Common and Civil Law families essentially regards the acquisition of powers that go beyond the traditional judicial ones. On the other hand, in Socialist Law it is mostly linked to institutional reforms. Despite the differences, they share the aim of promoting an effective functioning of the legal system and simply try to reach the result from different paths. The real effectiveness varies from case to case and there’s no evidence of a better approach as every situation has its own peculiarities. In conclusion it is possible to state that a common trend of ascendency does exists and it is leading the judiciary to be the primus inter pares in the worldwide scenario.
• Fordham: Comparative Legal Traditions – Introducing the Common Law to Civil Lawyers in Asia
• Hartkamp: Judicial Discretion Under the New Civil Code of the Netherlands
• Gillespie: Rethinking the Role of Judicial Independence in Transforming East Asia
• Kelsen: The Pure Theory of Law
• Montesquieu: The Spirit of the Laws
• Peerenboom: Law and Development of Constitutional Democracy: Is China a Problem Case?
• Reimann: Towards a European Civil Code: Why Continental Jurists Should Consult Their Transatlantic Colleagues
• Rousseau: The Social Contract
• Turcotte: Why Legal Flexibility is not a Threat to either the Common Law System of England and Australia or the Civil Law System of France in the Twenty-First Century