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.
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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.
TEXT 9 Lawyers as advisers, not judges
It may seem strange that in the Roman world, which valued law highly, legal experts were advisers rather than judges. But so long as a society thinks that the ruler should do justice personally, the legal input has to come from elsewhere. If the laws are at all intricate, the ruler will not be expert in them. The role of lawyers is then to advise the ruler about the law rather than to sit in judgment themselves.
The idea that the ruler should not himself be a judge, and should not interfere with judges, comes much later. It was not until 1607 that James I of England was told by Chief Justice Coke that he was not learned in the law and so could not judge a lawsuit himself. The king strongly disagreed, but his view was rejected.
In the next century (1748) the French writer Montesquieu argued that, for citizens to be truly free, the main powers of government must be in the hands of different people. So the legislative power of making laws, the executive power of carrying them out and the judicial power of judging whether they had been broken should be separate. This theory (the separation of powers) dominated the American constitution of 1787 and is now widely accepted. Where it is taken seriously judges cannot be dismissed for giving decisions that the government dislikes, but only for corruption or incompetence.
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