The role of the judge is seen by many as being very clear cut and simple. However, if you look at it in more detail, it becomes evident that it is not as simplistic after all. To begin with not all judges carry the same role. There are some noticeable distinctions to the role of the judge in common law jurisdictions to the role of the judge in civil law jurisdictions. It is important to consider the way in which the law is developed in the two different jurisdictions to enable the role of the judge to be apparent.
In a civil law jurisdiction the law comes from a civil code which provides a consolidation of the law of the country. Whereas the law in common law systems is developed on a case by case basis and it is also held in various statutes. Civil law jurisdictions also pay a great deal of attention to the theory of natural law, which is said to be God's law. This looks at the inner morality of law and is said to be superior to manmade law. Lon Fuller stated how "the legal system as a whole must conform to morality" in order for the two to be successfully linked together.
"The continental judge treats the code more liberally than the English judge treats statute"1, this is because common law judges depart from statutes more freely to what civil law judges do with the codes, as in civil law jurisdiction the code is used more generously and is given a greater importance. This means that the role of the judge in a civil law system can be said to be a lot stricter than in a common law system as there is less flexibility.
This is because they are meant to stick to the written law more. In the French civil code it states that "Judges are forbidden, when giving judgment in the cases brought before them to lay down general rules of conduct amounting to regulation"2. This means that judges cannot make law in any way or lay down general principles; they are simply meant to follow the code and interpret that. This was agreed by the French writer Portalis in his 'Discours preliminaire for the Code Civil'.
It is also stated that "If he refuses to adjudicate a case for the alleged reason that there are no provisions in the law applying to this case or that the provisions to be found in the law are obscure or insufficient, a judge may be prosecuted as guilty of the criminal offence of refusal to administer justice. "3 In the film "Judgment at Nuremberg", judges from the Nazi period were put on trial for applying the Nazi law. It was said that some of the judgments they had been passing were against the law of morality. This focuses on the issue of whether it is a judge's role to apply the law passed as by an executive.
Under the theory of legal positivism it can be said that this is indeed the judge's role. They have a duty to imply the law that is set by an authority. Looking at the provision in Article 4 of the French Civil Code, which comes from a civil law jurisdiction, this theory of legal positivism is strengthened further. It can be said that the judges on trial were simply fulfilling their role. This is a role of applying the law of the state and not questioning its reasoning. Common law jurisdictions differ greatly from civil law jurisdictions.
In a common law jurisdiction there is the doctrine of Stare Decisis. This means that judge's previous decisions are followed where judges have interpreted the law that has been made by the state. Judges can also avoid the doctrine by distinguishing cases on the facts, and therefore do not follow a strict code. This shows how the role of the judge in a common law jurisdiction is more flexible than in a civil law jurisdiction. Civil law jurisdictions are not able to even make their own interpretations of the law, they simply follow and apply the code.
Judges in common law jurisdictions tend to look at the law set out to them more broadly, and although they do not legislate, they can adapt principles of the law to apply it to the issues in each individual case. However, an important question still to be answered is what is the role of the judge? Patrick Devlin states that "the first – ought one to say the whole? – duty of the English judge is to administer justice according to law"4. A definition of justice is "1. The basic value underlying a system of law, or the objective which that system seeks to attain. 2.
The virtue which results in each person receiving his due. "5 This shows how one of the roles of the judge is to apply the law so that its purpose that it was put in place for is achieved and also to ensure that due punishment is given. The film "Judgment at Nuremberg" focuses on the case U. S. A v Alstitter et al6. This is when there was a 'judging of judges'. The people that had been in positions of judges during the Nazi period were put on trial for crimes against humanity. They were being tried for the sentences which they had given during Hitler's reign.
During this film there are many portrayals of the judge's role and how he should work with and around the law of a country. In the opening sequence of the film the prosecutor starts by stating how "they distorted, they perverted and they destroyed justice and law in Germany [when] most of all they should have valued justice"7. This brings us back to Devlin's statement of how a judge's role is to administer justice. The prosecutor is stating how the judges went against this role during the Nazi period.
The phrase 'most of all' shows just how important providing justice is, to a judge's role, whether it is in a civil or common law jurisdiction. Although the entire film looks at the judge's role and the action of the judge in the Nazi period, the judgment made by Judge Haywood plays the most significant part in analysing the role of the judge. It is stated how the 'Nazi judges' "consciously participated in a nationwide governmental organised system, of cruelty and injustice in violation of every moral and legal principle known to all civilisations.
"8 The mention of morality here, together with legal principle shows how they are linked together. It can be argued that a judge also has a moral obligation when applying the law. This moral concept, which they must consider, is one that all civilisations have. It is understood worldwide and is needed for true justice. Closing his judgment, Judge Haywood goes on to state, "Before the people of the world, let it now be noted that here in our decision, this is what we stand for. Justice, truth, and the value of a single human being.
"9 This quote spells out the role of the judge. It states how they have an obligation to supply justice for the people. There are also links with the moral factors of the role of a judge, as it is also looking at the people it is being supplied for and the value of people in the country and this is very much a moral issue. The film looks at the reasoning for why the judges acted in the ways in which they did, yet still concludes that no one in their right mind could have come to the judgments that they had come to if they were actually acting in the role of the judge.
It shows how there is a relationship between law and justice, but entwined in this is also the concept of morality. The closing judgment by Judge Haywood seems to come to the conclusion that justice is only done if it's morally right for the judge to enforce it, showing that justice is a major part of a judge's role. There is talk of all civilisations by Judge Haywood, proving that whether the judge is in a common law jurisdiction, where there is more flexibility, or a civil law jurisdiction, where the judge is simply to apply the civil code to bring justice. This can only be reasonably done where moral standards allow it to be.