Civil Law and Common Law Traditions: Judicial Review and Legislative Supremacy in West Germany and Canada

Abstract

Listen

Translate article

THERE are a number of areas in which traditional common law and civil law systems are said to differ. These include judicial training and prestige, the supremacy of the legislative enactment, the role of precedent and stare decisis, the influence of legal scholars, the collegiality of members of the judiciary, the relationship between the judiciary and the legislature, and the relative status of the judge and the popularly elected representative with regard to law-making powers. many ways the differences are more apparent than real in the normal functioning of the legal systems within each tradition; yet the folklore persists. Certainly the historical traditions of each system have contributed to the persistence of the folklore. When considering whether statutes have priority over the common law, Sir Edward Coke, Chief Justice of the Court of Common Pleas, stated: In some cases the common law will control acts of Parliament and sometimes adjudge them to be utterly void.3 civil law tradition, on the contrary, tends to subordinate judicial power to the legislative: The continental European tradition.. . which sees the statute as the instrument for effecting needed economic (and other) change, and which expects the judge to consider himself as closely bound by the language of the statute . . . which he is called upon to apply to a given case, leaves much less room for such innovative judicial work.' This article explores the reality of the folklore by focusing upon the relationship between the judiciary and the legislature within a common law and