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In common law, judge-made precedents are more important than in civil law where judges are supposed to stick more closely to the written code. Thus, one may say that judges are given more power in common law traditions.

However, the picture flips in terms of how judges handle trials. In common law, judges are more like neutral referees and moderating the debate between the two sides, while in civil law, judges are supposed to take a much more direct role.

How can we reconcile these two facts? What is the logic behind this seeming contradiction?

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  • I suggest that common law judges may have different powers rather than more power. Also, most (if not all?) common law jurisdictions do have have written "codes": statute and procedure rules. For England and Wales they can be found here legislation.gov.uk and here justice.gov.uk/courts/procedure-rules
    – Rock Ape
    Jan 11 at 8:38
  • IMO they are complementary issues. Give the judges more power in conducting the trial and more freedom in interpreting the laws, and you end with sentences being a lot more divergent between different judges. But a justice system should be in theory independent of the judge (if you did X you are guilty or not and what your punishment is should depend only on X), so divergence is bad.
    – SJuan76
    Jan 11 at 9:00
  • @RickApe I agree. I'm more asking for an explanation of the two facts I bring up. If the main consideration is "to what extent we trust judges", which is how I framed it in the question, then we seem to have a "puzzle"... which basically means that the two facts must be motivated by different reasons.
    – J Li
    Jan 13 at 7:09
  • @SJuan76 That is a really interesting thought: if you give the judge too much power on both fronts then there is too much variability. Is there any evidence or writing on this, suggesting that this is the reason for the difference in legal structure design?
    – J Li
    Jan 13 at 7:10
  • Added "legal-theory" tag (which was auto-converted to "jurisprudence") and voting to re-open. A question asked with the aim of understanding legal theory is not out of scope as long as it's not overly broad.
    – grovkin
    Jan 22 at 18:29
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The same way we reconcile the fact that some tall people enjoy horse racing and some short people enjoy basketball

We don’t.

The traditions are just different. There are historical reasons why they are different but one doesn’t have to be explained in terms of the other.

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  • I agree. If you know the answer, can you expand on what historical reasons prompted those different designs?
    – J Li
    Jan 13 at 7:10
  • @JLi French Revolution and the Roman tradition of laws.
    – Trish
    Jan 16 at 18:25
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In common law, judge-made precedents are more important than in civil law where judges are supposed to stick more closely to the written code

Judges in both traditions are supposed to stick closely to the written codes that apply, but in the civil law tradition they don't have to consider other judges ruling, while in the common law tradition, trial judges have to consider other appellate judges' rulings. So, the civil law tradition gives civl law trial judges more power in this respect in individual cases, while giving common law appellate judges more long term power to make law.

In common law, judges are more like neutral referees and moderating the debate between the two sides, while in civil law, judges are supposed to take a much more direct role.

This isn't really true either. Judges are more like referees in jury trials, although they still decide what the law is and control the proceedings, but in a bench trial (which account for roughly half of civil trials in common law courts in the U.S. almost all of the civil trials in countries other than the U.S. and Canada, and most criminal trials for minor offenses outside the U.S.), judges have authority to both find facts and apply those facts to the law, just as civil law judges do.

Also, even in criminal jury trials in the U.S., trial court judges unilaterally screen felonies on the merits for the existence of probable cause in pre-trial hearing in most cases, and unilaterally impose sentences (with immense discretion) following criminal convictions. Judges in U.S. criminal trials also have the power to dismiss criminal charges following a jury trial for lack of evidence, although not the power to convict based upon overwhelming evidence (which they have in civil cases).

Furthermore, there are several important respect in which common law judges are more powerful than civil law judges:

  1. Common law judges in bench trials and pretrial proceedings (with narrow exceptions) act alone, while civil law judges except in the most minor of cases, act in panels of three or more judges.

  2. A common law judge's findings of fact in a bench trial are not subject to de novo review on appeal.

  3. Common law judges have contempt of court power including the power to summarily jail or fine people physically present in their courtrooms without a trial, which civil law judges lack.

  4. Common law judges in equity cases have far more discretion concerning the remedies that they can fashion than civil law judges.

  5. Common law judges have significant public law authority - i.e. the power to rule on cases where the government is alleged to have acted unlawfully, while this is handled by a separate part of the legal system in most civil law countries, such as the Council of State in France.

  6. When a common law trial judge's decision is reversed on appeal and remanded for a new trial, for example, the case on remand goes to the same judge, in civil law countries, a case reversed on appeal and remanded is assigned to a different judge.

  7. In the U.S. and some other common law countries, the power of judicial review on constitutional questions is held by all judges (not just the U.S. Supreme Court as many people errantly believe), while in most civil law countries, the only judges who can review the constitutionality of legislative enactments are judges on a special constitutional court in a separate proceeding.

It is also worth understanding that the institution of the jury trial, in addition to serving a role of making decision making on legal issues more democratic also serves an important purpose to benefit common law judges by deflecting responsibility for controversial judicial determinations that would otherwise have been made by the judges, to an anonymous and ephemeral panel of jurors. This helps to protect the legitimacy and authority of common law judges in the face of criticism that might lead to political action to reduce their power. Also, academic studies surveying judges following criminal jury trials have found that judges and juries agree with each other on the issue of guilt or innocent around 90% of the time anyway.

In practice, for a variety of reasons, common law trial court judges are vastly more powerful than their civil law counterparts, and are likewise more powerful at the appellate court level, due to their ability to make law that is binding in the future rather than merely interpreting existing codes in non-precedent making opinions.

In sum, there is no inconsistency or paradox to resolve.

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  • It should also be pointed out that finding of fact doesn't have to require any expertise. 12 people who are not smart enough to get out of jury duty are just as capable as following gathered evidence as the most learned judge. And in comparison, there is a small but noticable better chance of a verdict of innocence from the Common Law Jury Trial than there is a Civil Trial.
    – hszmv
    Jan 21 at 17:49
  • Also should point out that in the U.S., the only type of case where you can not expect a jury trial is one where the government is named a defendant in the suit. In all other cases, a Jury Trial will happen unless the defense waives its right (in the case of the government, the laws that allow suits against the government stipulate that the government will waive its right to jury trial... in part because the citizens of the U.S. are inheritely distrustful of the government.).
    – hszmv
    Jan 21 at 17:51
  • @hszmv "the only type of case where you can not expect a jury trial is one where the government is named a defendant in the suit." Not true. A jury trial is not available if the cause of action would have arisen in courts of equity prior to the merger of courts of law and equity, or for newly created claims more akin to equity claims than to claims that could have been pursued in pre-merger courts of law. There is also no right to a jury trial in admiralty cases, nor is there a right to a jury trial in suits between U.S. states.
    – ohwilleke
    Jan 21 at 19:39

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