Abstract
This article intends to compare two distinguished legal systems, by the perspective of the role of judges and how this officer of the court applies and interprets the law. This paper focuses on how and when judges are allowed to create the law within their judicial decisions. In this sense, we analyze how application and interpretation of the law fit within the legal concept of discretion and, in case of adopting the possibility in which the judicial authority carries out this prerogative. Also, it is taken into account how different judicial discretion comes from legislative and administrative discretion. Taking law application and interpretation as an exercise of judicial discretion is a key element to allow us to identify the way the judges create the law in civil law and common law systems. This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs.
Highlights
This reasoning will lead us to find elements to understand the purpose and length of a trend seen in countries in Latin America such as Brazil and its new Civil Procedure Code, which focuses on importing means from common law system to increase the efficiency of Judiciary Power, in order to attend social needs
Important to notice the intensity of this connection between tradition and the imperative element which makes it possible to understand what the lawmaking power of common law judges is, we must think about the way in which the legal system provides judges the authority to apply the law
The discretion of common law judges has been providing to them the powers to create law by precedents with the same authority as statutes
Summary
The social peacefulness is acknowledged by the state as a very important value, so that it is an essential element to social development By adopting such model, state jurisdiction, the state brings upon itself the duty of setting the applicable law to a case once presented to said authority as a conflict. By historical or philosophical reasons, the society of countries in which common law is adopted acknowledges to judges the capacity of creating social behavioral norms Another aspect is in countries where civil law is applied, the lawmaking process is bound by statutory law which judges are allowed to declare (by the means provided by the system) the sense and content of the rules already displayed in the statutory system. The present article intends to seek some limits for this trend, in order to better connect the influence of the common law system to the basis of the civil law system
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
