Vanderbilt Journal of Transnational Law


James C. Hair

First Page



The traditional distinction between a judge in the Civil Law System and his counterpart in the United States is that the former only applies codified law, while the latter not only applies but also "makes" law through judicial decision. The theory underlying the Civil Law System holds that development of the law is the exclusive province of the legislature and that judges are not to engage in such activity unless the legislature permits it. In France, for example, to ensure that judges do not exceed their authority, the Civil Code prohibits a judge, under threat of criminal sanction, from basing a decision on precedent, so as to prevent the development of general principles of law through judicial decision. A similar prohibition is found in the Austrian General Civil Code of 1811, which expressly states that a case decision is not a source of law and may not be relied upon as precedent. It is provisions such as these which led Dean Pound to label civil law courts "judicial slot machines." The most pronounced differences between the two legal systems is theoretical, since the theory behind the United States system openly acknowledges the impossibility of separating the functions of "applying" and "making" the law, and maintains that the two functions are not only complimentary but also interrelated and interacting. American legal theory even maintains that judges may nullify law created by legislatures if that law is found to be "unconstitutional." Thus, by contrasting the theories behind the two systems the civil law judiciary is depicted as being passive while the American judiciary is depicted as being active.