Indiana Journal of Global Legal Studies 11.1 (2004) 139-160
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The Advantages of the Civil Law Judicial Design as the Model for Emerging Legal Systems
Charles H. Koch, Jr*
Currently, a number of societies around the world are reforming their legal systems, often upon emerging from years of oppression. Two transatlantic models, the civil law and common law, will have a great influence on these reforms. For one thing, the two basic models already cover over 70 percent of the world's population in some 62 percent of the existing legal systems.1 Moreover, there will be many practical, economic advantages to westernizing a legal system, which necessarily means incorporating at least some aspects of one or both transatlantic models. The key is to extract the best features of the models and adapt them to the specific legal culture.2 The civil law approach to judicial design in particular has much to recommend it. A dominant feature of the civil law model is the responsibility it places on the judge in dispute resolution.3 True, common law judges have [End Page 139] more authority in the sense that they can evolve the law through precedent, whereas civil law judges do not have that authority.4 The civil law judge, however, dominates individual litigations and hence sound dispute resolution depends on the quality of its judges and on assuring that they have the wherewithal to perform their responsibilities to the best of their abilities. Thus, the lessons from civil law judicial design are particularly worthy of consideration in reforming a legal system.
Emerging legal systems should look to civil law judicial design because focusing reform on the judiciary has several advantages. Judges are important to competent dispute resolution whether the base system derives from the common law or civil law. Able judges can be the great equalizers, assuring fair litigation regardless of the relative resources of the litigants. The common law relies on the performance of its lawyers and on advocacy to assure successful litigation, but lawyers are responsible to their clients alone. Judges, on the other hand, are neutrals who are responsible to the public and ultimately justice. Furthermore, the judiciary is an identifiable and discrete component of any legal system and judicial performance and conduct can be subject to public scrutiny. Reform notions based on the common law would naturally focus on the development of a competent private bar and scrutiny of its performance, but lawyers are less identifiable and manageable as a group than judges, and formal techniques for assuring quality, as we see in the U.S., are largely ineffective.
Reference to the civil law model may have another advantage for many emerging legal systems. The role of judges in large non-transatlantic legal cultures may make the civil law judicial model more compatible with traditional customary or religiously-based legal attitudes. Judges in many of these cultures are not so much presiding officials responsible for fair litigation and choosing the winner as they are counselors, educators, or even parents charged with guiding [End Page 140] the litigants to the proper outcome.5 That is, judges represent moral authority rather than state empowerment. The civil law judicial philosophy, which places so much faith in the judge, might be more adaptable to such legal systems.6
Recognizing the potential for judge-oriented reforms, I look here at the lessons which might be derived from civil law's approach as an "outsider," experienced with the U.S. version of the common law model. My purpose is merely to explore the advantages of civil law judicial design, not to advocate for the adoption of the whole of either model. Indeed, as will be discussed throughout, the U.S. common law system has incorporated some of these same concepts in its administrative process.7 The civil law approach might help an emerging legal culture improve the quality of its judiciary and provide it with better tools to [End Page 141] perform an active role in dispute resolution.8 My analysis...