The reconfiguration of the judge`s role in the romano-germanic law system

• Author: Elena Anghel
• Position: Lecturer, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest
• Pages: 65-72

LESIJ NO. XX, VOL. 1/2013

THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE

ROMANO-GERMANIC LAW SYSTEM

Elena ANGHEL

Abstract

The role assigned to the judge varies from one legal system to another. In the Anglo-Saxon legal

systems, in the context of the absence of an independent legislative body, judge is the one who creates law;

his mission consists in solving a specific case, given the existing judicial precedents; if he can not find an

appropriate rule of law, the judge has to create one and to apply it. On the other hand, in the continental

system, creation of la w is the mission of the legislator. Evolving under the influence of Roman law, the

continental law systems differ from the Anglo -Saxons by: the assuming of Corpus iuris civilis; the tendency

to abstraction, leading to the creation of a rational law; the rule of law, with the consequence of blurring

the role of jurisprudence.In spite of these essential differences, the last decades of the twentieth century

have found out the convergence of the written coded system and the common law system. Thus, the

increasing of the legislature`s role in common law system is accompanied by the reconsideration of the

judge`s role in the Roman-Germanic legal system. While Anglo-Saxons accept the "compromise" of coding,

Continentals shyly step towards rethinking the status of law source of the jurisprudence. History has shown

that, one by one, law and jurisprudence have disputed the the role of prime creator of law.Emphasizing the

creative force of jurisprudence, Vladimir Hanga wrote: "The law remains in its essence abstract, but the

appreciation of the jurisprudence makes it alive, as the judge, understanding the law, examining the

interests of parties and taking inspiration from equity, ensures the ultimate purpose of the law: suum cuique

tribuere”

1. However, as we shall see below, in the Roman-Germanic law system, the c reative role of

jurisprudence still raises controversy.

Keywords: creative role of jurisprudence, controversy, common law system, continental system,

judicial precedents.

Introduction

By analyzing several o pinions of academic commentators on the expansion of the role of

continental jurisprudence in postmodernism, we notice that the phenomenon is of ten qualified as

a danger threatening the rule of law. Thus, amongst the symptoms of the crisis of the current

juridical universe, Ioan Vida also includes the government by judges, who transfer their own

decision in legal precedents, creating legal regulations (norms established by way of ap peal in

the interest of the law) or removing from the legal system certain norms declared as

unconstitutional.ăAllă these,ăshowsătheă author,ă“undermineă theăfundamentală architectonicsăofă theă

lawăandă itsăenforceableă nature”ăandă renderătheă reconstructionăofă theălaw,ă “theărebuildingă ofătheă

legalăuniverse”,ănecessary2.

Dana Apostol Tofan notices that the interpretation of legal texts, with such confuse and

imprecise renditions, has become d ifficult, and blames the judges for an increased consideration

 Lecturer, PhD, Faculty of Law, “Nicolae Titulescu” University of Bucharest (e-mail:

elena_comsa@yahoo.com).

1 Vladimir Hanga, Dreptul şi tehnica juridic, Lumina Lex Publishing House, Bucharest, 2000, pag. 80.

2 Ioan Vida, Orientri post-moderniste în procesul de creare a dreptului, in Studii de Drept Românesc, year

12 (45), no. 1-2/2000, page 28.