COURT SYSTEMS AND LAWinterpretation (rather than a gap) was the prob-
lem, the court would draw on similar cases, not as
precedents but to use as a basis for a new principle
that would be held to govern the case at hand. In
this manner, the spirit of a code based on perma-
nent principles would be maintained.
The German approach to codification had a
lasting effect in emphasizing the dominant role of
the scholar in civil law systems generally. Although
the scholars were everywhere evident, in the case
of Germany, Savigny and his followers felt that in
creating what they considered to be a code based
on ‘‘scientific’’ principles they were creating a
body of law that was indeed scientific in a sense not
unlike that of the physical sciences. It was built up
from empirical elements, could be found to be
true or false, subject, as any science is, to modifica-
tion as new facts came in. It came to be called
‘‘legal science,’’ which remains the dominant school
of thought even up to the present, however much
criticized. It had its own concepts, such as a ‘‘juridi-
cal act,’’ and was systematic in structure and there-
fore an infinite distance from such American
schools of thought as ‘‘legal realism.’’ Above all,
the Pandectists (as they came to be known, from
the Latin word for Justinian’s Digest—pandectae)
felt their great strength was their purity in being
divorced from politics and everyday life.
Actually, as Merryman (1985, pp. 65) points
out, the Pandectists were far from being value free.
The doctrine was shot through and through with
the basic assumptions of nineteenth-century Euro-
pean liberalism—private property, liberty of con-
tract and, above all, individualism. They were most
limited in their concept of law as a matter of
transactions between private individuals, an as-
sumption that was to collapse in the growth of
giant collectivities, such as corporations and labor
federations and, most important, the increased
role of the state in managing economic and social
life. Although civil law systems recognize the dis-
tinction between private and public law, even di-
viding up law in just that way, they hardly anticipat-
ed, nor could they, the merging of the two systems
as states began to manage private life, and as
private relations became imbued with public con-
sequences as with pollution, the spilling over of
populations across borders and, still later, the
emergence of new national groups or even nations
and new communities such as the European Com-
munity (cf. Gessner, Hoeland, and Varga 1996).
It is clear from the above that the Uniform
Commercial Code in the United States, though
called a code, has nothing in common with the civil
law codes. It is not animated by any underlying
utopian principles, it makes no claim to answer all
questions, and it makes no attempt to supersede
any laws. Instead, it is a collection that seeks to
bring some order into the many elements of com-
mercial law. States are free to ignore it (though few
do so), and new laws can be tacked onto it at any
time. It remains judge-made law, with judges being
free to draw on it or not for precedent as they please.Legal science did leave one imprint on Ameri-
can law, though a minor one. Case law, as taught in
American law schools, was thought of as a kind of
science, with cases as the raw materials. Conclu-
sions from case accumulations might generate
principles with wide applications. An attempt to
state these principles took the form of what were
called restatements, which are, from time to time,
quoted by judges as they go about making law.JUDGESAs we have noted, the position of judges in civil law
countries is vastly different from that in common
law countries, especially the United States. Merryman
(1985) points out that judges are not only respect-
ed in the United States but that some, such as
Marshall, Holmes, Brandeis, and Cardozo, are
culture heroes. The opinions of U. S. Supreme
Court judges are studied carefully, as noted earli-
er, for hints of policy changes and guidance on
how to proceed in deciding on difficult issues such
as euthanasia, product safety, and whether schools
may require bilingualism of its teachers. There
seems no limit to areas into which judges may
wander. Nor do judges hesitate in passing judg-
ment on any law (if appropriate, of course) or even
on the private life of the President of the United
States. As has often been noted, American law is
judge-made law built up from cases that lawyers
have presented for decision (and, note, the judge
must limit himself to such presentations, since he
is very limited in his power to bring up issues on his
own initiative). The supreme doctrine is that of
stare decisis, whereby judges are required to follow
decided cases; new cases must be compared to
those already decided. If similar facts, then a simi-
lar decision. If the facts are significantly different,
then there is a different decision. As noted by