«The Civil Law System: History and Mythology

Merryman Study Questions

1. What are some examples of Civil Law countries outside of Latin America?
2. What is a legal tradition? (And what is it not?)
3. Law: What is, in theory, the primary/only source of law in this tradition? What consequences does this have for the binding effect of prior court decisions on subsequent court decisions (stare decisis)?
1. Has this theory been eroded, more recently?
4. Judges: how are civil law judges different than common law judges - typical careers, judicial function, importance/prestige in the system,
   1. Has this traditional image been modified recently?
5. Statutory interpretation: how much latitude were civil law judges supposed to have in interpreting statutes?
1. Was this a tenable approach, and what were the solutions to the tensions it created (i.e., did civil judges in fact acquire the power to interpret statutes)?
2. What happened to the ideal of the mechanical application of clear legislative norms?
3. In practice, what is the effect of prior court decisions in civil law systems?
6. Certainty & Equity: In theory, what is most important in the civil law tradition, certainty or equity?
1. Does this mean the civil law is less equitable (i.e., fair) than the common law?
2. In practice, are civil law judges strongly restrained by the requirement that they refer to a source of law even in making equitable decisions?
3. As to civil contempt power, do civil law judges have less control over litigants than common law judges?
7. The Legal Process: How is the division of labor among judges, scholars, and legislators understood in the "folklore"?
1. Does the folklore match what happens in reality?
8. Public law (i.e., administrative and/or constitutional law): In theory, were civil law courts supposed to have extensive powers to curb administrative actions (actions by the state)?
1. In practice, have civil law countries developed means of putting limits on the authority of state actors?