INTERPRETING THE LAW IN A MIXED JURISDICTION: THE PROFESSOR VS. THE JUDGE—PEERS OR RIVALS

Abstract

J.H. Merryman defines a legal tradition as a set of “deeply rooted historically conditioned attitudes about the nature of law, the role of law in the society and the political ideology, the organization and operation of a legal system.” He goes on to suggest that, whereas “a legal system is an operating set of legal institutions, procedures and rules . . . a legal tradition puts the legal system into cultural perspective.” If one were to accept his arguments, it can be established that while each legal system is independent, which very often can be attributed to a political unit, there may be common denominators with other independent legal systems. Together, these independent systems may share a historic, cultural, or political ideology and can be described as forming a legal tradition. As far as historical development is concerned, Professor Peter de Cruz argues that on one hand, it was widely accepted that the development of English common law was fairly straightforward, “wherein a large body of rules founded on unwritten customary law evolved and developed throughout the centuries with pragmatism, strong monarchs, an unwritten constitution, and centralized courts being its typical features.” On the other hand, non-common-law European countries have a more checkered history, which has led scholars to label the tradition “Romano–Germanic.” This reflects the strong influence of Roman law as well as the influence of the French Civil Code, namely the Code Napoléon, and the German Civil Code. Significantly, Roman law introduced the notions of codification and systematization of general principles into identifiable concepts. This is in stark contrast with the common law, whose principles “developed in an ad hoc fashion,” mostly in response to dispute settlements. Therefore, the most significant historical fact is that common law was developed by the courts, which gave it considerable “weight,” whereas civil law was formulated and compiled at universities. As a consequence, a major distinction between the legal families of civil and common law is that in England, the Bench is paramount, while on the European continent, the law professor reigns supreme. Judges on the continent tend to be faceless, glorified civil servants sometimes described as fungible persons, which is “a reference to the res fungibilis in Roman law, i.e. goods that are replaceable and interchangeable in contrast to particular objects with a distinct value of their own.” Conversely, common law judges play an important personal role. Their names are known to the public through the publication of dissenting opinions amongst others. For example, one can mention Lord Denning from the United Kingdom or William Brennan from the United States. From an academic perspective, “In civil-law countries the ‘makers of the law’ have for centuries been the learned jurists led by the professors in the Law Faculties. The academic writer is the senior, the judge is the junior partner in the life of the law.” The authors of the treatises and the codes have all been law teachers, and the judges and lawyers “once sat at their feet” to learn. One can mention Charles Aubry or François Laurent from France and Belgium as examples. In England though, it is hard to imagine law professors telling the Bench how to decide a case, because the Bench is the “oracle of the law.” Thus, while judges on the European continent follow professors’ teachings, English judges do not. In fact, when universities were first established in England, only Roman law was taught and no English law was taught at all. The teaching, or rather, the training in law was the priority of the Inns of Court, not the universities. While law had been taught on the continent since the Middle Ages—going as far back as Irnerius of Bologna and his glossators—it was not until 1882 that Professor Dicey questioned whether English law could be taught at English universities in his inaugural speech at Oxford. Even some eminent judges in the twentieth century studied a different discipline at university. For example, Lord Denning first studied mathematics before becoming a jurist. Having highlighted the differences between civil and common law jurisdictions, one may ask: But what about mixed jurisdictions? Legal systems are generally considered “mixed” when they have been influenced by a variety of other systems. While presently avoiding the issue of whether “mixed” implies a legal family in its own right, one can easily refer to jurisdictions as mixed when, for various reasons, their development drew upon principles from both common and civil law. One might cite the laws of Scotland, Québec, Louisiana, Malta, and—in a different way—the European Union (EU) as examples. But the crucial question remains: What is the role of the professor or judge in a mixed jurisdiction? More specifically, do mixed jurisdictions follow the common or civil law approach, or have they created their own approach? This Article focuses on the role that professors and judges play in the interpretation of national private law in mixed jurisdictions. First, the Article examines the role that professors and judges play in the traditional legal families of civil and common law, by analyzing how the judge came to be the prevalent actor in common law systems, while the law professor is more important in civil law systems. More precisely, this part of the Article compares the civil and common law systems by discussing the applicable features of each in order to facilitate an understanding of the degree to which input from professors and judges influences the development of the legal system. Because mixed jurisdictions straddle the civil and common law systems, it makes sense to begin this study by investigating the “pure” forms of these concepts in their respective legal families. Second, the Article takes these aforementioned issues and considers them within the context of mixed jurisdictions. Because this author is writing from Malta, a vibrant mixed jurisdiction in itself, the pertinent issues are examined from the Maltese viewpoint—i.e., with Malta serving as the jurisdictional point-of-reference. While the Maltese legal system is used as the main microcosm in this Article, there are also references to other important jurisdictions—including the EU—for purposes of comparison. Third, the Article examines the differences in legal training and education among civil law, common law, and mixed jurisdictions. It also briefly discusses the free movement of lawyers within the EU. Finally, the Article concludes by (1) summarizing the findings, (2) attempting to accurately define the role professors and judges play in the development of a mixed jurisdiction, and (3) comparing the resulting definition with the roles professors and judges play in the “pure” legal families.