COURT SYSTEMS AND LAWClark (Merryman 1991, p. 898), this need to do
such case research, which falls on the shoulders of
lawyers, helps explain (though only partly) the fact
that the United States has more lawyers per capita
than any other country for which we have reliable
statistics.
Nothing could be further from that image
among civil law judges. To begin with, the status of
‘‘judge’’ is usually much lower than is the case for
common law judges. A civil law judge is a govern-
ment employee, a civil servant, appointed to his
position, whose career will follow that of other civil
servants in rising by seniority and merit. His pres-
tige is not necessarily low but reflects the prestige
of civil servants at his level. He likely identifies with
other civil servants, though more closely with judg-
es, resulting in a certain insularity from the gener-
al public and its concerns. He is particularly isolat-
ed from any creative role in decision making. In
line with the continuing suspicion of the dangers
of judicial power going back to the parlements of
pre-Revolutionary France (as well as similar excess-
es in other countries), he must not interpret the
law or review legislation. As noted, he is a kind of
expert in the application of the law to particular
cases. More recently, constitutional review has
begun to make its appearance in Austria, Spain,
Italy, and Germany, but this goal is achieved not
through giving judges in the ordinary courts new
powers but rather through the creation of special
constitutional review bodies that often are not
called ‘‘courts’’ but that in time perform court
functions.
This is not to say that appeal from judicial
decisions was or is impossible. Quite the contrary,
appeal is common but still dominated by attempts,
at least in form, to restrict the power of judges.
Thus, in France, appeal for what is claimed to be a
misinterpretation of a law may be made to the
Court (originally called a tribunal) of Cassation
which could quash an incorrect interpretation by a
lower court. It would indicate the correct interpre-
tation but then remand it to the lower court to
modify its ruling. The courts could ignore this
decision but in practice would rarely do so. The
process was time-consuming, and, in the case of
Germany, the higher court would not only quash
the lower decision but go ahead and revise the
decision itself. It was also possible to appeal ad-
ministrative rulings, though not, as in the Ameri-
can case, by declaring a law unconstitutional or
lacking in validity because of vagueness or for
being over-broad. Instead, another body outside
the court system was created. These might be what
would amount to administrative courts, with a
council of state at the top, a process seen not only
in France but also in Italy and Belgium, as well as in
Germany and Austria, where they were actually
called administrative courts. Such attempts to coun-
ter state power were not necessary in a country
such as England, where courts have the power of
quo warranto (questioning the legality of an act by a
public official) and mandamus (the ability to order
a public official to perform as required by law). As
noted, similar powers are possessed by ordinary
American courts, though it is difficult for courts to
use them.The attempts to control the power and initia-
tive of judges was tied up with another concern of
civil law traditions; namely, the search for certain-
ty. As long as judges had interpretive powers, the
law was a tool in their hands that could be twisted
to suit particular interests. Instead, the hope was
that if the code plus legislation was clear and
complete the judge would not need to exercise any
initiative. Such a concern with certainty is not
foreign to common law, either—persons need to
know what the law says for law to be a guide to
behavior. However, in civil law there is little that
resembles the concept of equity at law. Equity—the
power of a judge to limit the harshness of a law or
to adapt the law to fit particular situations—gives
him great powers. In England, equity reached its
greatest development in the creation of chancery
courts as a way of appealing to the king against
what was felt to be an unjust rule of law. Civil law
countries, though occasionally, and grudgingly,
conceding a place for equity, preferred to confine
it to the legislature, which might grant equitable
powers to a court for a particular case or might
make what amounts to an equitable grant of power
to a court by telling it that, when the law is unclear,
the court is to see to it that the parties acted ‘‘in
good faith.’’ But the suspicion of judicial discre-
tion remains and is not always a simple prejudice.
Thus, the Nazi regime in Germany was able to
make use of such discretion by using the courts to
provide a patina of legality to its racist decrees, a
process more difficult in Mussolini’s Italy, where
discretion was more restricted.One other important difference is that the
English and American courts include in equitable