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.

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