Civil Law System (Second Edition)

Author: John Henry Merryman
Publisher:
Publication Date: 2004-01-01
Features: This book is written specifically for lay readers, not for legal professionals. Its target audience includes: general readers who wish to understand the connections between the legal systems of Western Europe and Latin America, as well as their differences from the Anglo-American legal system; amateur legal enthusiasts who are familiar with the legal of European and Latin American cultures; and students who require supplementary reading materials for courses in history, political science, sociology, philosophy, international relations, and law. Legal professionals who have not yet studied foreign law or comparative law but wish to this deficiency due to work or other needs can also benefit from this book. Since its publication in 1969, the civil law system has undergone many changes. While retaining the original structure and most of the content, new material has been added, such as a new chapter discussing the significant changes occurring in the civil law system. On this occasion of the second edition, this book also reflects the suggestions of previous readers, and in addition, the reference list has been updated for future study. Here, I would like to express my special thanks to , as well as to the suggestions provided for the writing of Chapter 20 of this book. I also extend my sincere gratitude to the authors of general comparative law literature for their profound insights.
Chapter 8 discusses the legal writings of civil law countries, which all strongly emphasize the certainty of law. Of course, in any legal system, "certainty" is a pursuit, but in civil law countries, "certainty" has been given supreme value and has become an unquestionable tenet, a fundamental goal. Although many civil law scholars acknowledge that other fundamental values exist alongside "certainty," maintaining these values may come at the cost of sacrificing "certainty." However, these principles are typically not discussed in such terms. Civil law countries often argue that reforming the legal system will undermine the certainty of law as a reason to oppose changes to the existing legal system. For example, during the Mussolini regime in Italy, fascists attempted to use law as a tool for totalitarian states, but legal scholars successfully resisted this attempt on the grounds of maintaining the "certainty" of law. After the fall of fascism and the establishment of the republic, many calls for reform of the Italian legal system were again opposed by legal scholars, citing the need to preserve the "certainty" of law.
"Certainty" is an abstract and important legal concept, like a queen in a game of international chess: it can move in any direction. Although the advocacy of "certainty" arises from multiple purposes, it is primarily due to distrust of judges. According to the requirements of "certainty," judges are not allowed to create law; legislation should be complete, clear, and logically rigorous; and the interpretation and application of law should as far as possible be a process that "automatically" achieves the "certainty" of law. In this sense, the advocacy of "certainty" reflects the desire to prevent judges from making law. The "certainty" of law is also generally recognized in common law countries, but the "certainty" of common law has three characteristics. First, the "certainty" of common law is typically understood based on more practical concepts and is not held as a tenet. This concept of "certainty" holds that, as far as possible, people should be made aware of their rights and obligations and should act in consideration of legal consequences. However, the scope of "certainty" is limited—it must be possible. Second, common law countries achieve "certainty" by granting legal force to judicial precedents, which is not allowed in civil law theory. Over time, judicial precedents accumulate a wide variety of typical cases, providing concrete and detailed examples of legal norms for the implementation of law. These precedents and legal norms, combined together, are more helpful in strengthening the "certainty" of law than vague legislative provisions. Therefore, this "certainty" in common law is conducive to the principle of "stare decisis"; whereas in civil law, "certainty" means opposing the principle of "stare decisis." Third, common law countries (especially the United States) generally believe that "certainty" is only one of many important legal principles, and it sometimes conflicts with other legal principles. Moreover, "certainty" often implies rigidity, making it difficult to apply already "certain" law to changing circumstances or handle special cases. In common law, "certainty" is