Critically compare and contrast the extent to which judges in civil law jurisdictions, (such as France), and those in common law jurisdictions, (such as England & Wales), could be said to make law First of all, it would be prudent to clarify the definitions of both civil law and common law. Civil law is defined as: the body of laws of a state or nation regulating ordinary private matters, as distinct from laws regulating criminal, political or military matters.
1 Common law on the other hand is defined as: a body of law that is based on custom and general principles and embodied in case law and that serves as precedent or is applied to situations not covered by statute common law of torts. 2 Already it is clear to see that there is a significant difference between the two systems, in that civil law is not based on custom or precedent whereas common law is. However, what does this mean? Is one better than the other? Civil law developed from Roman law and Emperor Justinian's Corpus Juris Civilis, (Body of Civil Law). It was mainly adopted by places such as Continental Europe, Japan and Latin America.
Civil law is older, more widely distributed and in many ways more influential than the common law. Common law on the other hand was formed out of the signing of the Magna Carta by King John in 1215 at Runnymede. This gave way to trials by jury and ultimately to the system of common law that is used today in our English courts. We must now consider the roles of both judges in the civil law system and the common law system and ultimately differentiate between the differences in their roles and powers, if any, and what this means for the two legal systems as a whole.
Let us first look at statutory interpretation and the ways in which judges interpret laws that have been put on to the statute books. Interpretation in language alone is not without its own pitfalls and misunderstandings, so it should come as no surprise, therefore, that interpreting laws and enacting them comes with its own perils and problems. When we, as ordinary people, receive even the simplest of instructions to carry out certain tasks, we interpret what has been said to us based on other information such as context, circumstance, habit, ritual etcetera.
3 Using these basic skills, we carry out the requested action resulting in the end product being achieved as desired. Interpretation in this context is instinctive. However, there are times when interpretation causes problems and it is at these times when things go wrong. This can be particularly of consequence in legal situations and makes the need for correct, concise and consistent interpretation in law all the more important.
In fact, Lord Hailsham said that probably as many as nine out of ten cases heard on appeal by the Court of Appeal and the House of Lords turn upon or involve the meaning of words contained in statutes or secondary legislation. 4 Legal documents tend to be extremely complex and long winded. They use a variety of language styles from ordinary to technical jargon and on top of this they are often drafted by more than one person. So clearly the way in which words, and ultimately laws, are interpreted is extremely important if we are to have a judicial system that works smoothly and efficiently.
In order to avoid conflicts that may arise out of interpreting statutes, there are what are known as the three basic "rules" which are used by judges to interpret them. They are as follows: 1. The Literal Rule; 2. The Golden Rule; 3. The Mischief Rule, (Purposive Approach) Let us first take that of the literal rule. According to the literal rule, it is the task of the court to give the words to be construed their literal meaning regardless of whether this results in an absurdity or not.
5 Therefore, this means that judges are not to deviate whatsoever from what has been written down by the draftsman in the statute and that regardless of how preposterous a result may ensue from this, he is to construe the legislation accordingly. The golden rule on the other hand means that judges are to give words their ordinary meanings in the course of interpreting the statute before them, unless there is such an absurdity or inconsistency such as to convince the court that this was not the intention of Parliament and accordingly the court may interpret what it believes was intended instead.