THE ENGLISH BENCH IS PARAMOUNT
Our third difference concerns the role and the prestige ofjudges. On the Continent the courts tend to be faceless, and the judges, instead of being highly visible individuals, have been described as fungible persons (a reference to the resfungibilis in Roman law, i.e.
goods that are replaceable and interchangeable in contrast to particular objects with a distinct value of their own).[49] By contrast, common-law judges play a highly personal role, their names are known to the public, they appear in the media and their â€?dissenting opinions’, which may one day become the maÂjority view, are published, discussed and often praised for their progressive content. The aforementioned Lord Denning in the United Kingdom and Thurgood Marshall (d. 1993) and William Brennan (d. ι 997) in the United States come to mind to illusÂtrate this point (we will hear more of Brennan’s stand on judicial review of the constitutionality of the laws and the death penalty in the following chapter).[50]Continental jurists tend to compare the common-law apÂproach favourably with their own, regretting, for example, that in Belgium the secrecy of the deliberation is paramount so that a judge cannot publicize his dissenting opinion, going against the view and the motivation of the majority. It is not surprising that progressive jurists plead for a modernization of court practice on the Continent, including the possibility of â€?dissenting opinÂions’ and greater openness in the motivation of judgments.[51] Continental investigating magistrates in criminal cases that capÂtivate public opinion do, however, receive full media attention and, as was the case in Italy, may even become actors on the political scene as enemies of corruption in high places. Here is an example of a rapproChement in which the common law is at the giving, and the civil-law countries at the receiving, end.