Role Of Judges In Common Law And Civil Law Systems

Introduction

The role of judges as deciders of disputes according to law is well known and relatively well understood. What is not clear is the role that judges have as law maker. If the outcome of a case is not dictated by binding precedent, then what material does a judge refer in making the choice? Do judges have a central part as a key piece in the game of legal chess, able navigate in their own rules like the Knight or are they constrained inside historical codes and tradition similar to the Pawn?

Common law – the unwritten law based on legal precedents set down by the judges before them that influences the decision making where unusual cases cannot be based on exciting statutes or written rules of law. In a common law system the Judges act as arbitrators, presiding over lawyer-led proceedings, designing appropriate remedies with somewhat flexibly. Similar to the knight, bringing variety and uniqueness to the game of legal chess. The Common Law Judge has some flexibility to stand above and set the rules, define the precedent to guide future rulings while reflecting on what has gone before.

This research essay however sits from the perspective of Civil Law and will critically analyse the role that judges play in this system whilst offering some contrast to Common Law. Civil law systems place much less emphasis on precedent than they do on the codification of the law. Civil law systems rely on written statutes and other legal codes. The codes, developed from historical codification process establish legal procedures, punishments, and determine what can and cannot be brought before a court. The straightforward movements, backwards and side to side – bound by the legal codes like the Rook only able to move in set directions and as long as its not obstructed.

By looking at both perspectives, as though through a looking glass and over the chess board timing clock, it will reflect back and conclude the role that the judges play in the legal game of chess. To narrow down the focus it will use the legal system of Japan, based on a civil law system rather than the Anglo-American legal tradition (common law system). The essay will touch on the American Legal System – primarily common law - for comparison and difference in the legal systems. It looks at the modern-day Legal Chess board and ponders on the rules of the game. Are Civil Law Judges firmly contained within their side or does each player, Common Law and Civil Law, drift in and out of the boundaries.

Main Body

The Japanese civil procedure was based on the model of the German Civil Code, which began in the 18th century; and to a lesser extent the French Civil Code, 1804. In 1880, the Criminal Code was the first major legislation enacted in Japan, followed by the Constitution of the Empire of Japan (1889), the Commercial Code, Criminal Procedure Act and Civil Procedure Act (1890) and the Civil Code (1896 and 1898). These were called the roppo (six codes) and the term began to be used to mean the whole of Japan's statute law.

The legal system in Japan can be seen as an offspring of continental and American law – the laws set by legal precedent. Both Civil Law concepts and recent Common Law influences are all effected by traditional Japanese values - a patient, gentle harmonious way of life. There are five types of ordinary courts in Japan: Summary Courts, Family Courts, District Courts, High Courts, and The Supreme Court. There is a three-tiered judicial system. In most cases, a summary, family, or district court will be the court of first instance depending on the nature of the matter. The Supreme Court is the top court. As set out in Constitution (Article 76) “The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law”.

This legal system although being reformed more than once maintains the basic principle and procedural structure. Japanese civil procedure remain quite similar to those of German procedure – a desire for a truly national law that would override the often-conflicting customs and codes. Being based on foreign models, there was inevitably a gap between the law and social reality. Customary law, together with judgments, played an important role in filling this gap and adapting the codes to changing social conditions. The American legal system as a comparison on the other hand is mostly inherited from the English legal tradition – reason, practice, custom and will derived from judges and practice-oriented academics.

With less emphasis placed on precedent and more of codification, the Civil Law system relies on written statutes and other legal codes. The codes relate to historical rules and regulations that over the years have been collected, restated and written down to provide a civil or to society. The first codification of laws dates to 2000 B.C.E. The Japanese Civil Code was adapted in 1896. By using the codes, Civil Law clearly defines the cases that can be brought to court, the procedures for handling and the punishment for the offense. In civil law countries, judges have a more central role, investigating facts, examining witnesses and applying the codified law to their findings in a somewhat stricter manner than in common law countries.

The present Constitution of Japan is regarded as the Supreme Law of the nation. The constitution provides that no law, ordinance, imperial edict, or other act of the government against the Constitution is to have legal effect. Fundamental rights that are guaranteed by the Constitution are regarded as inviolable even by way of legislation. In order to safeguard the supremacy of the Constitution, courts in Japan are now empowered to review the constitutionality and legality of laws and ordinances as well as administrative decisions. This perhaps is a shift from a Civil Law society to Common Law with a more flexible approach to the law.

Judges do play a central role in the legal system in Japan

The role of the justice system in Japanese society is based on the concept of the “rule of law and places all parties concerned in an equal position and under which an impartial third party makes a decision based on fair legal rules and principles through proper and clear procedures must, along with the political branches, be a pillar to support the ‘space of the public good’ '. The Judge in a Civil Law system is that of a mere “operator of a machine designed and built by legislators” – they have limited movements – like a pawn in the legal game. When dealing with cases, the judge in a Civil Law system relies heavily on the codes and statutes – the rules set down by generations before through the process of codification.

Compared with the Common Law system, where much of the law was and still is judge-made, adherence to judicial precedent is well established in law and practice – born from the Knight with variety and uniqueness of decision. Most judges in common law countries agree that common law is judge-made law. It is the by-product of the litigious process in the higher courts and judges are obliged to defer precedents. America with its Common Law system is one of the most litigious country in the world.

The Japanese legal system of our modern world has however some reliance on Common Law principles. It is rare that the Supreme Court will overrule any prior decisions or precedents. Case law precedent acts as a non-binding guidance that, when not in conflict with code, and may be relied upon and persuasive. Judgment are respected, especially those of the Supreme Court and followed as one of the primary sources of law. New rules often emerge from case law and Judges therefore need to study precedents as an essential part of discussing legal problems.

When we look at the roles that judges play using the judicial proceedings of civil cases – legal disputes between private individuals – individuals rights and obligations are ultimately determined by judgement. Judgements are made in accordance with the Code of Civil Procedures. Judicial decisions of higher courts in Civil Law countries, although respected and generally followed, do not have the force of law. The courts in this Civil Law system use codified provisions on each case without referring to past judicial decisions even if that past decision may be superior. Codification of the law, as our modern world transforms, cannot provide for every possible case requiring a review and development of new legislation - eloquently put by Ghan, F (1922) “There is a cry for what is intrinsically right and fair in each case”.

Judges do not play a central role in the legal system Japan

Judges, trained to see themselves as creative law makers, might begin to put too much emphasis on that role, and too little on the undoubted importance of stability, certainty and sound analysis. You could argue that judges in the legal system, particularly the Civil Law system prejudge and predetermine outcomes by relying heavily on codes. When we look at Japanese judges they are generally ‘career judges’. Appointed for a fixed term of 10 years, with the renewal of term usual, although not guaranteed. Since codes were somewhat general in character, there is a need for the gaps had to be closed by court judgments leaving little room for flexibility.

Sometimes judges needed to deviate from the provisions of law in order to attain equitable results. This however in Japan is limited as the Supreme Court of Japan wields great power in promoting and transferring lower court judges. Because of this power the lower court judges are less inclined to rule against precedents of the Supreme Court. Article 81 of the Constitution sets “the Supreme Court as the last resort with the power to determine the constitutionality of any law, order, regulation or official act”. You can understand the unwillingness to step outside, to be a knight and move a less reformed, unique and un-codified pattern across the legal game of chess.

Conclusion

Is a judge just player in the legal game of chess or do Judges plays the central role in all legal systems? This research essay set out to find out using the legal system of Japan - based on the civil law system and the American Legal System – primarily common law. What it found was that judges play a role in both the Common Law systems and Civil Law system, the two are becoming more difficult to identify.

Judges in the Common Law system are playing a more active role where a good deal of codification has taken place. Whereas in the Civil Law system, judges tend to follow precedent and case law has been built to assist in the interpretation of the codes. Social, economic change and globalisation has meant that the judges in civil law countries, such as Japan, have had to clarify statutes through judicial interpretation. Where in common law countries such as America the strict doctrine of precedent is used less and less and the “de facto” power to create law is starting to make its mark. There is a gradual growth in the position, importance and standing for Civil Law judges however the Common Law judges remain creative, respected and powerful figures.

When we look back at the game of chess – each side starts with 16 pieces – it’s the role of the Judge on how to navigate the win, through codes or precedents, Pawns or Knights, determining which piece to move first, which to move next, which one will get you the check-mate and which one needs to be re-examined, adjusted and re-presented.