Western Legal Systems Research Articles

Matrimonio e Famiglia Non Fondata sul Matrimonio (Marriage and Family Not Founded on Marriage)

Matrimonio e Famiglia Non Fondata sul Matrimonio (Marriage and Family Not Founded on Marriage)

Grondslagen en methoden van juridisch onderwijs

This article aims at elucidating some methodological dilemmas which should be taken seriously in legal education. It also aims at articulating the process of how these dilemmas emerged both historically and philosophically. The article starts with the observation that our Western legal systems are rooted in a specific theoretical tradition which can be described as being twofold. In a first already ancient (pre-philosophical) conception, theory finds its nexus both in experience and in narrativity, whereas a more modern conception of theory focuses on logical and conceptual coherence, building a system of professional knowledge. The author argues for a combination of both theoretical conceptions as complementary cornerstones of legal educational programs.The twofold theoretical background of our Western legal tradition can offer us a welcome and fruitful basis for dealing with some important methodological dilemmas: an anascopic (from action to institution) vs a katascopic (from institution to action) approach; deductive vs inductive reasoning; problem-oriented thinking vs systems thinking; case based/case oriented vs doctrinal/conceptual thinking. The author argues for a dialectical complementarity between the respective poles of these dilemmas.Finally, the author argues for introducing – already in an early stage of the program –European Union legal thinking as a challenging laboratory ‘in action’ for searching a reflective equilibrium in dealing with the aforementioned methodological dilemmas.

A Comparative Analysis on Church-State Relations in Eastern Orthodoxy: Concepts, Models, and Principles

Church-state relations in Eastern Orthodoxy have provoked many debates among theologians, scholars, and policy-makers. Currently, however, there is no consensus about which one of the past and present models of church-state relations can be considered properly Orthodox. The theologians belonging to this Christian denomination often criticize and even reject the Western legal systems that presume a certain degree of separation between church and state. According to them, this principle contradicts the Orthodox ideal of full harmony and unity between both institutions. The representatives of Byzantine studies, whose research has explored the role of Byzantium as a cradle of Orthodox civilization, express similar views. The other pole in the debate is comprised of experts in political and social sciences who interpret Orthodox church-state relations as being characterized by a domination of state over church, which limits the ability of these societies to develop democracy.1 This view is often combined with accusations against Orthodox churches of being “nationalist institutions.”2 This thesis was synthesized by Vjekoslav Perica, who defines Orthodoxy as a religion in which “the Church, ethnic community and state grow together.”3

Harmonization of Islamic Law in National Legal System: A Comparative Study Between Indonesia Law and Malaysian Law

This artcile compares Indonesia legal system. The government legalized Islamic Law in national legislations, which are in effect for Muslim People. To facilitate dispute settlement, there is a relgious court to solve Islamic dispute based on Islamic Law. The Existance of Islamic law in Indonesia and Malaysia has similarity and differentiation. The similarties among others are: the Muslim-majority in both countries pushes the government to put Islamic law into force, Islamic law must be written into consitution or legislation. It is needed to have legal basis when performing Islamic law, the existence of relgious court is very important in dispute settlement related to Islamic Law. The influence of western legal system is very strong in national legal system. Neverheless, the western legal system differs substantially from Islamic legal system, and Islamic law was implemented limitedly based upon western legislation. It was limited to fiamily law. While the differentitaiton are: the way of implementation of western legal system into national legal systemn and the form of legislation. Indonesia has one legislation, which is in effect to all of Indonesia people. On the contrary, Malaysia has many enactments, which are different from one to another in each negeri.

SISTEM HUKUM BARAT, SISTEM HUKUM ADAT, DAN SISTEM HUKUM ISLAM, MENUJU SEBAGAI SISTEM HUKUM NASIONAL SEBUAH IDE YANG HARMONI

West Legal System follow the philosophy of legal positivism values conflict with the noble values of the Indonesian nation, so there Gab between the law and people of Indonesia are regulated, System of Customary Law in the values of certain indigenous communities whose territory reached 350 indigenous territories, and can only be believed by public socialized habits, and can not be validated as a national law, and Islam as the Legal System is based on the attributes of God as "Asmaul Husna" and diamalkan believed by the majority of individuals nationwide Indonesian society and tolerance of permanent values believed by minority groups in Indonesia, therefore the system of Islamic law that allows a system of national law in accordance with the personality of the Indonesian nation and not betentangan with the values of Pancasila. Keywords : Western Legal System, system of customary law, islamic legal system, the national legal system, perspective of legal philosophy, harmony.

Peacebuilding, the Rule of Law and the Problem of Culture: Assimilation, Multiculturalism, Deployment

The technocratic project of building the rule of law in post-conflict peacebuilding is advanced as a guarantor of liberal peace. This ‘rule of law fable’ that correlates peace with technical institutions of western legal systems recalls the colonial and modernisation ethos to engineer African societies in our own image. As such, as in the case of Sierra Leone, practices of law that do not conform to the interventionary conceptualisation of the rule of law are rendered pathological. Specifically, ‘culture’ is positioned as a problem for peacebuilders to solve. There is not, however, a homogeneous response to the problem of culture, but strategic diversity: assimilation, underpinned by liberal claims to cultural neutrality, aims to produce cultural sameness by combating custom and tradition. Accommodation that domesticates local tradition represents a radically depoliticised multiculturalism, while deployment mobilises tradition to encourage ‘buy-in’ to the rule of law project.

One Summer in Gdańsk: Poland’s leadership in transition from the socialist legal model

(ProQuest: ... denotes non-US-ASCII text omitted.) One Summer in Gdansk In 1989 I was undertaking research at the University of Bremen into what became my PhD topic.1 I had involved myself in peace and environmental issues in Melbourne2 and took great interest in the events taking place in Eastern and Central Europe. I was invited to join the peace mission 'Sailing for Peace', organised under the UN Peace Council, involving 37 yachts from all around the Baltic Sea, and even from Moscow, in a 'peace flotilla', which met at Copenhagen and sailed to Lubeck (Federal Republic of Germany), Rostock (German Democratic Republic), Kolobrzeg, Gdynia, Gdansk (Poland) and Klaipeda (Lithuania, USSR). In each port, crew members engaged in discussions with local and regional political bodies and community groups, held public seminars on peace and environmental issues and even performed street theatre. It was a lovely summer and a perfect time to visit the beautiful city of Gdansk, where our fleet docked in the old Hanseatic harbour just by the main town square. The level of excitement in Gdansk was amazing and large crowds, as well as the Polish media, were very interested in our visit. It is difficult to believe this was 20 years ago. Reading issues of the German news magazine Der Spiegel from that time reminds one of the state of excitement that East- West issues had reached in May, June and July 1989, with crucial events balanced on the edge of contention across the globe from Nicaragua to China. My involvement in Sailing for Peace and interest in the events that unfolded continue to stimulate my academic interest in issues arising in states in transition - the basis of my present project on rebuilding the civil law in states in transition with Dr Anna Taitslin,3 in which we have enjoyed generous cooperation with the National Europe Centre at The Australian National University and its Director, Professor Simon Bronitt. The Polish election of 4 June 1989 for the popular chamber, the Sejm, and the new Senate was a leading experiment in the democratisation of socialist governmental structures. Poland had for many years been a centre of energy in demands for greater democracy - probably unrivalled in the socialist world. The world had observed martial law and the growth of the Solidarity movement around the trade unions and particularly the workers at the Lenin Shipyard in Gdansk. The juxtaposition of the maturity and relative peacefulness of the Polish election with the violent tragedy of the Tiananmen Square massacre4 - both on 4 June 1989 - highlights Polish leadership in dealing with democratisation and transition. In this chapter, I wish to trace Poland's leadership back to earlier points, particularly in the advancement of civil law and property rights under socialism. Poland's Leadership in Transition from the Socialist Legal Model This chapter is an early exploration of the transition of Poland's legal system within a wider project that examines the legal systems of a number of formerly socialist states in Europe and Asia with the objectives of examining: i) the status and operation of the civil law and the property model adopted in socialist states; ii) steps taken to rebuild civil law and settle post-socialist property issues; and forming a view on iii) desirable policy and strategy with respect to, and the priority of, rebuilding the capacity of civil law institutions and restructuring property holdings in states in transition. On the basis of research to date, a hypothesis is emerging that the strength of civil law institutions in transition is an important factor in the re-establishment of a liberal legal system, which contributes to success of the transition more broadly. The experience of Poland has contributed to the formation of this hypothesis. The importance of the civil law ina Western legal system is widely underestimated. The civil law is the means by which citizens are able to challenge the legality of each others' actions horizontally within society, without recourse to top-down regulatory agencies in the public law sphere, which might be unreliable, underresourced or pursuing other priorities. …

Sex Discrimination in Education: Interaction of Ethical and Contextual Challenges in Implementing Equal Opportunities in Hong Kong

Ethical decisions are contextualized in the dialectic of a multidimensional system, including situation, setting, culture, and generation. There may be further gaps between the ethical considerations of professionals and folk values. The experience of promoting equal opportunities in Hong Kong illustrates some of these challenges. Whereas the rule of law under a Western legal system advocates human rights, the traditional emphasis on harmony and preference for balancing in conflict resolution underlie the gaps in the interpretation of these ideals. The case of the Hong Kong secondary school places allocation system highlights the conflicting perspectives of law, gender stereotypes, psychological knowledge, as well as ethical principles of justice and fairness in promoting equal opportunities in educational assessment and placement. The cultural perspective highlighted in this case illustrates the complex contexts of ethical decisions.

The origins and development of family conciliation in Japan: a political aspect

Mediation has a peculiar characteristic as a form of dispute resolution. It is ‘all process and no structure’. Because the final agreement is the justification for the procedure, mediation can accept non-legal intervention in order to help both parties reach an agreement. In Japan, conciliation – ‘mediation conducted by lay people’ – was institutionalized much earlier than in the US, the UK and European countries. In the early twentieth century, it was introduced by government not only to reduce the court's workload, but also to promote settlements based on patriarchal and particularistic values. The government had tried to introduce a Western legal system as soon as possible after the Meiji Restoration in 1868, but underlying this encouragement of Western-style law lay the aim of abolishing the extraterritoriality which had been conceded to Western countries. The national slogan during the Westernization process was ‘Preserve the Japanese soul and learn Western techniques’. The first family law drafted by a French law professor offended those in power, because it gave rights to family members and put the married couple at the center of a family. This notion of a family system contradicted that of the dominant class in Japan, which gave the head of a family the power to govern family members and put a male filial line at the center of a family. Therefore, after the re-drafted family law had come into effect, the government planned to exclude all types of family disputes from the ordinary court system. For this purpose, the ‘reform’ of family law, the establishment of a special tribunal, and the introduction of conciliation were planned, though only conciliation was introduced before WWII. After WWII, in the process of postwar reform, all these schemes came to be realized, although family law itself was changed to comply with the new Constitution. Many prewar conciliators kept their positions after the war. Conciliators were usually retired old men or housewives who were chosen by the court for their ‘good common sense’ and social standing. Conciliators were expected to persuade spouses, particularly wives, to repair and sustain relationships, but as people became less and less subservient to official authority, family conciliation came to be criticized as imposing often obsolete and personal views upon spouses. However, conciliators have become indispensable assets for the courts. They form a national organization which is the only national organization to support the courts. Conciliators not only reduce the court's workload but also provide significant political support to the courts. The position of a conciliator as a court official is still attractive for retired people and even lawyers. In so far as this mutually beneficial relationship does not collapse, Japanese family conciliation will survive for the foreseeable future.

Negotiating narrative

Youth justice conferencing is one of a number of programs which have been introduced into western legal systems in recent years, typically under the banner of a ‘restorative justice’ reform movement. These conferences bring young people (who have admitted their guilt), victims and other parties into a face-to-face meeting in which the impact of the offence and possible reparative actions are discussed at length. In this paper, based on field observations and transcripts, we report on our preliminary efforts to analyse the generic structure of conferencing, focusing in particular on the accounts given by young people of their offending behaviour. The flat ideational focus of these accounts and the absence of an ongoing prosody of evaluation make them quite unlike the personal recounts typically produced by young people and, while seemingly appropriate to the context of a youth justice conference, also create a genre identity for the young person which may be at odds with the expectations of other conference participants (and indeed theorists of restorative justice) who are looking for signs of sincerity and remorse from the young person.

Constitutionalism as a Peaceful "Site" of Religious Struggles

The author analyzes the relationship between religion and constitutionalism. The time seems propitious for an examination of the relationships in the West between Church/es, the State, and the general principles of “constitutionalism," a definition which cannot be separated from the analysis of its historical and secular roots.It is not arbitrary to explain constitutionalism as a product of a “long process of secularization, however, the idea of secularism (laicïté, in French) has never been clearly defined. On the contrary, it has often been the source of tension, for example the debate on the common Judeo-Christian heritage in Europe, during the drafting of the EU's Constitutional Treaty.In the West this is an era of unprecedented religious diversity. In some States one religion still predominates; in others, religious representatives have a formal political role, for example, the bishops who sit in the House of Lords of the United Kingdom where, as in Greece, a national Church remains a reality. Nevertheless, the separation between Church and State is, generally, the prevailing principle in the institutions of the Western legal systems and their politics. In any case, the “religion issue" still remains an important aspect of liberal constitutionalism which is a legal model that contains institutionalized mechanisms of power control to prevent tyranny and to guarantee individual rights and liberties, including religious freedom.The author will try to demonstrate that the discourse of human rights – a pillar of modern-contemporary constitutionalism – offers, both at national and supranational level, space for re-defining (i.e. re-inventing) the meaning and boundaries of sovereign power because it is more compatible with some fundamental principles, such as human dignity, rule of law, liberty of religion and conscience; as well as a more “homogeneous definition" of a secularized constitutional legal system.

Chinese Civil Justice, Past and Present (review)

Reviewed by: Chinese Civil Justice, Past and Present Xiaoqun Xu (bio) Philip C. C. Huang . Chinese Civil Justice, Past and Present. Lanham, MD: Rowman and Littlefield, 2010. xviii, 297 pp. Hardcover $59.95, ISBN 978-0-7425-6769-6. The final volume of a trilogy on Chinese civil justice,1 Philip Huang's new book completes his research on the subject over the past twenty years and enriches Chinese legal history and legal studies with new perspectives. The most significant contribution of the book lies in the arguments and evidence presented that compel one to move beyond a binary view, informed by Max Weber, of the modernist Western legal system vis-à-vis the traditionalist Chinese legal system. At the same time, based on substantial case records, some of which are also found in Huang's earlier works, the book reveals convincingly the continuity in Chinese civil justice from the Qing dynasty to the post-Mao reform era, both in legal practices and in an underlying mode of thinking. Huang calls his methodology the "history-of-practice approach" (p. 1). Essentially, he pays greater attention to the actual practices of civil dispute resolution than to theories, representations, and institutions. That is, to grasp how civil disputes were actually resolved, he looks beyond, without dismissing a rational-formalist theory of law, official representations of legal ideals and the formal court system. His central argument is that Chinese civil justice involved both adjudication in court and mediation in or outside court, from the Qing to the present, often in ways that manifested compromises between Confucian (and Maoist) moral ideals and social realities, especially of peasant society. Huang uses several concepts, such as "practical moralism," "Confucianized legalism," and "centralized minimalism," to characterize the ideological and institutional features of imperial China that were relevant to civil justice practices. By [End Page 129] "practical moralism," Huang highlights the Qing law of "merging moral representations with practical action, the two being at once inconsistent and yet combined together." Huang characterizes these concerns succinctly: "[W]hat this system said was one thing, what it did was another, but these two combined was yet another thing" (p. 10). Furthermore, he uses this concept to identify a particular mode of thinking in Chinese legal practices that starts from facts rather than from theory. By "Confucianized legalism," Huang describes a combination of legalist ideology of government by laws, punishments, and bureaucracy with Confucian ideals of benevolent government. This approach was reflected in the metaphor of government as a parent and subjects as children. If this formulation is familiar, what Huang analyzes with it is illuminating. In the Confucian ideal, society was a moral universe in which disputes, if they arose because of moral failings, would be resolved by societal mechanism of mediation without government interference; court adjudication was necessary only when the mechanism failed. Therefore, civil disputes over property, debt, marriage, and inheritance were considered minor matters, to be resolved initially through community mediation. By "centralized minimalism," Huang means the institutional reasons for the Qing state preferring to leave civil disputes for community mediation. Beyond judicial matters, nonsalaried, quasi-officials in sub-county society took care of local affairs (usually without paperwork), from village schools to collective responsibility (tax and security) arrangements. Constrained by the Confucian minimalist ideals, the Qing dynasty operated a limited governmental apparatus with the county magistrate at its lowest level. This system created a need for quasi-officials and dispute resolution by community mediation at the county level and below. Furthermore, by using the concept of "centralized minimalism," Huang wants to capture not only "how formal government was organized but also how semiformal governance was practiced in the gray zone between the formal state and informal society" (p. 78). One of the refreshing insights Huang offers from this perspective is that the commune system in the countryside during the Mao era could be considered a continuation of the minimalist administration, in that cadres at the village level (production brigades and teams) were not funded by the state but self-funded—"eating collective grain" (p. 81). These cadres had a stake in the local community's well-being despite the line of control through Party organization to which...

Responsibility, ‘Bad Luck’, and Delinquent Animals: Law as a Means of Explaining Tragedy

This article examines the phenomenon of the prosecution and punishment of animals in medieval and early modern Western legal systems. Animal trials are important because examining them can help us learn more about the functions of legal proceedings. The article considers potential explanations regarding these trials. With reference to Nicholas Humphrey's idea that the animal trials were the product of a search for order, the article subsequently argues that the notion that law can make sense of tragedies by defining them as the consequence of culpable conduct is illuminating in the context of contemporary English law. By conducting an analysis of a well-known contemporary criminal law case, the James Bulger trial, the article shows that one can plausibly interpret the outcome of certain significant modern cases as having the function of explaining tragedies in a relatively reassuring manner, and that this function may conflict with the requirement of ‘doing justice’.

Il divorzio imperfetto: I giuristi medievali e la separazione dei coniugi (review)

Reviewed by: Il divorzio imperfetto: I giuristi medievali e la separazione dei coniugi James A. Brundage Il divorzio imperfetto: I giuristi medievali e la separazione dei coniugi. By Giuliano Marchetto. [Annali dell’Istituto storico italo-germanico in Trento, Monografie, Vol. 48.] (Bologna: Il Mulino. 2008. Pp. 500. € 32,50 paperback. ISBN 978-8-815-12500-2.) The formation and dissolution of marriage is vitally important, not only to the parties involved but also to historians who study medieval society. Marchetto’s investigation of the canon law dealing with divortium a mense et thoro, or “incomplete divorce,” as he calls it, is a magisterial treatment of the [End Page 599] development of a central, if sometimes puzzling, element in the matrimonial law of the medieval church. Separation from bed and board was a creation of medieval Western canon law and had no direct parallels in Roman, Jewish, Byzantine, or Germanic law. As Marchetto demonstrates, the concept originated among teachers of canon law and theology in medieval universities, was subsequently incorporated into ecclesiastical law, and still survives in one form or another as an alternative to “complete” divorce, which in modern Western legal systems carries the right of remarriage. Marchetto divides his book into three parts. The first and longest of them (pp. 21–231) deals with the development of doctrine concerning marriage and divorce among medieval canonists, civilians, and theologians. Part 2 (pp. 235–324) outlines the gradual crystallization of a procedural system for handling separation cases, while part 3 (pp. 327–426) analyzes the grounds on which a separation might be granted. A concluding section (pp. 427–41) summarizes Marchetto’s arguments and is followed by an impressively comprehensive bibliography (pp. 443–91). The author limited the index at the end to personal names and hence excludes subject entries. This is a pity, especially in a work of this size and complexity, although the detailed table of contents at the beginning of the book provides at least a modicum of help for those who wish to locate his treatment of a particular matter. One especially fascinating topic among the many that Marchetto treats is his investigation of the emergence of cruelty (saevitia) as a ground for marital separation. What makes this so unusual is that it first appeared in the writing of Bulgarus, a teacher of civil law, was then adopted and developed by later twelfth- and thirteenth-century canonists and theologians, and was widely accepted by church courts as a legitimate basis for granting separations long before it was formally approved and incorporated into the official texts of canon law. Marchetto’s book centers almost exclusively on the development of academic doctrines concerning marital separation and pays scant attention to the actual practice of courts and judges. Although it seems true that judges usually did follow the formal prescriptions found in the texts of the Corpus iuris canonici and the interpretations of those texts current among university teachers of canon law, it has become increasingly clear that regional variations from the doctrinal norms were not entirely uncommon. To understand how the law concerning marital separation was actually implemented in practice, therefore, requires investigation of the surviving case records of ecclesiastical courts. Those records are widely scattered and often difficult to access, and scholars have begun to study them systematically only in recent years. A realistic understanding of the workings of marital separation law thus requires that Marchetto’s treatment be supplemented by consultation of case record studies such as Coniugi nemici: la separazione in Italia dal XII al [End Page 600] XVIII secolo, ed. Silvana Seidel Menchi and Diego Quaglioni (Bologna, 2000) or Charles Donahue, Jr.’s Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (New York, 2007). James A. Brundage University of Kansas (Emeritus) Copyright © 2009 The Catholic University of America Press

Justice at a New Scale: Introducing a Conceptual Framework for the Analysis of Highest Courts' Role in a Globalised Context

The judiciary in the liberal democratic model is an institution which has grown and developed in a traditional framework. This institution is embedded in the Constitution and in the underlying principles of the liberal-democratic model for the regulation of power within states. In the current trend of globalisation, however, this constitutional embedding does not give enough support anymore. The increasing awareness of judges regarding international law and case law from other jurisdictions invites a new reflection concerning the constitutional foundations of the courts' legitimacy.This paper presents the outlines of a conceptual framework for the investigation of this subject matter with regard to western legal systems. This framework offers a new perspective, because of its combined concern with constitutional norms regarding supreme courts' and constitutional courts' functioning in different constitutional cultures, and the contextual background of globalisation and its influence on the role of highest courts. Legal research on the basis of this frame of reference will show how tradition and modern influences can be united in the Constitution.

The Religious Perspective of the Judge's Role in Talmudic Law

Unlike modern Western law, which is generally assumed to be the product of human deliberation about the common good, at least in democratic countries, Jewish law is a normative system in which adjudication is subject to religious commandments. The judge bears responsibility not only to the litigants standing before him but also to God, an allegiance which most modern Western judges do not, at least explicitly, recognize.Because of the systems' assumptions that law is made by humans and thus can be understood by human judges given the appropriate information, modern Western legal systems infer that judges are under obligation to render a decision on any legal question brought before them, even in doubtful cases. Secular-civil law views the resolution of a dispute as preferable to its non-resolution, even if the judge has reservations about his decision. The judge who is hesitant to decide a case is considered to have failed to properly discharge his judicial role, the very essence of which is the regulation of human conduct in one form or other. The obligation of the judge to render a decision on every legal question both implies and requires that a judge exercise creative discretion in at least some cases where the law or its intended application are not clear to ensure the rendering of a clear and unequivocal decision on any legal question brought before him. As a consequence of this unequivocal demand that the judge decide, most judges must make peace with the possibility that their rulings may later be discovered or determined to have been mistaken.

Laying Claim to "Country": Native Title and Ownership in the Mainstream Australian Media

Laying Claim to "Country": Native Title and Ownership in the Mainstream Australian Media

Eyewitness recall: Regulation of grain size and the role of confidence.

Eyewitness testimony plays a critical role in Western legal systems. Three experiments extended M. Goldsmith, A. Koriat, and A. Weinberg-Eliezer's (2002) framework of the regulation of grain size (precision vs. coarseness) of memory reports to eyewitness memory. In 2 experiments, the grain size of responses had a large impact on memory accuracy. Further, participants achieved a compromise between the accuracy and informativeness of their testimony by volunteering precise answers only when likely to be correct. The level of detail reported was strongly, positively related to confidence in the accuracy of the response. This highlights the importance of considering the level of detail, not just the accuracy, of eyewitness testimony.

Judges' Cognition and Market Order

Abstract We argue that during the crystallization of common and civil law in the 19th century, the degree of discretion in judicial rulemaking, albeit influenced by the comparative advantages of both legislative and judicial rulemaking, was mainly determined by the anti-market biases of the judiciary. The different degrees of judicial discretion in both legal traditions were thus adapted to different circumstances, mainly the unique, market-friendly, evolutionary transition enjoyed by English common law as opposed to the revolutionary environment of the civil law. On the Continent, constraining judicial discretion was essential for enforcing freedom of contract and establishing a market economy. The long-term confluence of both branches of the Western legal system towards lesser freedom of contract is explained as a consequence of increased perceptions of exogenous risks and changes in the political system. These favored the adoption of sharing solutions that interfered with market-supporting institutions and removed the cognitive advantage of parliaments and political leaders.

Common Law and Civil Law as Pro-Market Adaptations

We argue that in the development of the Western legal system, cognitive departures are the main determinant of the optimal degree of judicial rule-making. Judicial discretion, seen here as the main distinguishing feature between both legal systems, is introduced in civil law jurisdictions to protect, rather than to limit, freedom of contract against potential judicial backlash. Such protection was unnecessary in common law countries, where free-market relations enjoyed safer judicial ground mainly due to their relatively gradual evolution, their reliance on practitioners as judges, and the earlier development of institutional checks and balances that supported private property rights. In our framework, differences in costs and benefits associated with self-interest and lack of information require a cognitive failure to be active.