Mark Washofsky
least, are of direct and highly persuasive force; or else it derives from any such system.”
Mary Ann Glendon , Michael Wallace Gordon, and Christopher Osakwe , Comparative Legal Traditions(St. Paul: West Publishing Co., 1985), 194. Roman law, of course, does not start with Justinian , whose great Code in many ways marked a departure from previous Roman jurisprudence; see below in the text. Yet even prior to Justinian , we can say that“a theory of judicial precedent comparable to that of Anglo-American law was never formally recognized at Rome.” Judges(iudices) instead rendered decisions on a case-by-case basis. See Hans Julius Wolff , Roman Law: An Historical Introduction(Norman, OK: U. of Oklahoma Press, 1951), 80.
Fritz Schultz, History of Roman Legal Science(Oxford: Clarendon Press, 1946), 285-286.
John H. Merryman , The Civil Law Tradition(Stanford : Stanford U. Press , 1969), 20-26. Merryman (16-17) also notes the emphasis that Enlightenment political theory placed upon the doctrine of separation of powers as essential for rational democratic government. Montesquieu ’s Spirit of the Laws is the primary citation on this point, which for our purposes provides another explanation for the tendency of the nineteenth-century legal codes to deny to judges any power to legislate.
Thus, those parts of pre-revolutionary France whose legal systems were dominated by Roman law were designated as les pays du droit écrit, while the northern and less-Latinized regions of the country were called les pays du coutume, since the older customary law held sway there; Gabriel Marty and Pierre Raynaud, Droit civil(Paris : Sirey, 1972), 1:118. France today, thanks to codification, is a“country of“written law”; i.e.,“legislation dominates French law”; René David , French Law: Its Structures, Sources and Methodology (Baton Rouge : Louisiana State Press, 1972), 155.
Merryman , 25; Glendon, et al., 204-205. See David , 170-178. Civil law doctrine knows of three types of custom. French courts will recognize the existence of consuetudo secundum legem(a custom supporting the law), since this custom is regarded as the definition of the terms of the legal rule. On the other hand, consuetudo praeter legem(custom which precedes law), which establishes legal rules that are independent of, but not inconsistent with, legislation is recognized only in areas of the law that have not yet been codified. And the third kind of custom, consuetudo adversus legem(custom contrary to law), simply does not exist in a legal system dominated by legislation. When such a custom is discovered in French legal practice, it is generally reinterpreted by the courts so that it does not conflict with the authority of the code or of the relevant statute.
Watson, 83-84. This, he suggests, might help explain the hostility of those English philosophers concerned with legal matters, notably Hobbes and Bentham , to the common law. The common law theorists, of course, could respond with Sir Edward Coke that while“Reason is the life of the law,” this was“an artificial perfection of Reason got by long study, observation, and experience”; Coke , Institutes of the Laws of England, ed. J. H. Thomas, Esq. (London , 1818), 1.