THE QUESTION

80 The preceding chapters have said a good deal about the various sources of law, especially statute, case law (which is often closely associated with custom) and scholarship (which can be regarded as the creator of natural law).

ADVANTAGES AND DISADVANTAGES

81 Each of the three sources of law and legal development has its own advantages and disadvantages. Legislation has the advantage of being able to set out clear rules, and the authority necessary to ensure that they are respected. It is true that case law and scholar­ship have sometimes gone to extreme lengths to adapt, or even through interpretation to nullify, statutes which they considered outdated or unjust. None the less there is a limit to what free interpretation can do, and it does appear that no other source is as well able to assure legal certainty as the clear and express rule of the legislator. When statutes have been codified, there is the additional advantage of a coherent, accessible and also limited body of legisla­tive material.

But legislation has its defects too. A statute cannot provide for or regulate all the cases which might arise in practice; the German codes which aimed at exhaustive regulation soon lost themselves in endless enumerations of cases.

Jurisprudence has the ability to explain statutes and judgments, to make criticisms which may lead to reforming legislation, and above all to give a rational basis to the study of law. This demands theoretical reflection, close attention to general principles and the coherence of the system as a whole, as well as an interest in legal philosophy and the purpose of law. But scholarship too has its difficulties. It often has a tendency to become lost in formulating abstract concepts or working out systems which have nothing to do with legal practice. Authors often contradict one another, and contradictory opinions threaten the certainty of the law. In any case scholarly opinions always remain private opinions without power to bind the courts, unless (exceptionally) they have been collected in a

^, Promulgation and abrogation Ofstatutes was sometimes so casual that judges, and even the legislator, could not be sure what was currently in force.

The advantage of case law is that it remains in close touch with reality. Judges invariably give their opinions in concrete cases. As society progresses and is confronted with new situations and new problems, case law has to resolve the questions which arise. As a result the courts cannot afford to develop theories which disregard everyday reality. Precedents do not, admittedly, have the authority of statute, but they have greater weight than scholarly opinions and can therefore offer greater legal certainty. The main disadvantage of case law is that it is made from case to case: it therefore never formulates a general theory which would give an overview of the structure and purpose of the law. In addition, when judges do not give reasons for their decisions, it becomes practically impossible to retrieve rules of law from a mass of specific judgments.² The flexibility of judge-made law contrasts with academic or official law, since academics aim precisely to give general accounts and set out basic principles in detail.

A weakness of case law is that it runs the risk of stagnation, particularly when it has excessive regard for its own precedents. A striking example of this is to be found at the beginning of the French Revolution, when the Parlement de Paris was required to decide on the voting method of the newly elected Estates General. The question was whether voting should be by counting heads or by Estates. It was a question which had enormous political significance, since the Third Estate was numerically superior, and would have dominated the assembly in the event of voting by counting heads; indeed, its claim to do so was not unfounded, given its qualitative and quantitative importance within French society.

• See the blunt statement OfChiefJustice Fortescue in 1458 (Year Book 36 Henry VI, folio 35 verso to 36): �The law is what I say it is, and it has been since law existed, and we have a system of procedural forms which are regarded as law and applied for good reasons, although we may not know what those good reasons are.’ however, ignored the political aspect (perhaps in a deliberate attempt to evade the contemporary political trend) and dealt with the question from a purely technical point of view. In its judgment, the Parlement simply followed the precedent of the previous meeting of the Estates General in 1614. The Third Estate revolted against this attempt in 1789 to follow the principles of 1614 without further ado, and proclaimed itself an Assemblee Nationale. The days of the Parlement de Paris were numbered.

LEGISLATORS, JUDGES AND PROFESSORS: COMPETITION

82 Historically, it is clear that representatives of each source of law were firmly convinced of the importance of their own contribution compared with other sources. Some examples will illustrate the point. Savigny’s attitude towards statute is instructive. He remarked disdainfully of the Prussian Allgemeines Landrecht that it would have to be â€?ennobled’ by jurisprudence based on Roman law.³ Although he was not in favour of natural law, Savigny did not go so far as to advocate repeal of the codes inspired by the School of Natural Law. But he did think that they ought to be subject to a jurisprudential revision which would have sharply curtailed their practical impor­tance.

According to Savigny⁵S theory, law develops from a nation’s innate sense of justice and from a people’s historical and traditional attitudes and values; law is therefore the result of a nation’s entire past, and cannot arbitrarily be imposed by the authorities of the present day. Thus to the crucial question: who was qualified to discover and expound the rules of law which the people had developed? Savigny⁵S answer was quite clear: this was a task neither for legislators nor politicians, but for lawyers. They were the legitimate representatives and spokesmen of the people and of the

3 For this purpose Savigny held five lectures on the Allgemeines Landrecht in Berlin between 1819 and 1832.

Volksgeist (the same Volksgeist which restricted the freedom of the legislator).+ In Savigny’s view, it was the professional class of lawyers which could best secure the development of living customary law, which was the true agent of progress. Resort should therefore not be had to codification, which was the fashion of an age of declining moral standards, but instead to the sound law of the people, expounded with the aid ofâ€?professors, faculties of law, courts, scholarly commissions and judges of the higher courts’? The hos­tility of the scholar towards the legislator, who with a stroke of the pen could sweep away the most cherished doctrinal constructions, is not at all difficult to understand.⁶

In countries in which case law was of high authority, there was no shortage of judges who took a critical approach towards legal doctrine, including professors and law faculties. The acerbic remarks of some eminent English judges with regard to academic lawyers have already been mentioned.

The legislator himself was not immune from judicial criticism, even when his projects of reform were both obvious and reasonable. A clear instance is the case of Lord Raymond, Chief Justice of England (rf. 1733), who in the House of Lords forcefully opposed the plans of the House of Commons to replace Law French with the

< Since it was lawyers who had accomplished the Rezeption, Savigny acquitted it of the charge of being a foreign product foisted on the German national spirit; cf. ¹Atti del seminario Jnternazionale su Federico Carlo di Savigny, Firenze 27-28 ott. 1980’, Quaderm Fiorentini 9 (1980)); G. C. J. J. van den Bergh, Wet en gewoonte. Historische grondslagen van een dogmatisch geding (Deventer, 1982; Rechtshistorische cahiers, 5).

s SeeWesenberg, Pfeuere deutsche Prwatrechtsgeschichte, 142-3; Gerbenzon and Algra₁ Voortgangh, ≡57∙.

⁶ See the sarcastic remark of Julius von Kirchmann (rf. 1884) in his lecture of 1848 entitled Die Werthlosigkeit der Jurisprudenz als Wissenschaft (â€?the worthlessness of jurisprudence as a discipline’): â€?three correcting words by the legislator, and Wholejurisprudential libraries become waste-paper’; quoted by Wieacker, Prioatrechtsgeschichte, 415.

ι See Wieacker, Privatrechtsgeschichte, 473, who observes that the chairs of law never exercised such great influence on the higher judiciary as in the first half of the nineteenth century, during which most of the lawyers of the BGB commissions studied: these conscientious practitioners were not bold or presumptuous enough to free themselves from their teachers. obligatory use of English in the practice of law and in the courts. In his eyes, the abandonment of the traditional language of the law opened the way to the most capricious innovations; this policy might even lead to the Welsh demanding the power to proceed in Welsh. In spite of his speech, a statute of 1731, which came into force on 25 March 1733, permitted the anglicization of justice.⁸

It is not surprising that politicians confronted with such undemo­cratic and reactionary obstructions did not allow themselves to be influenced by the �oracles of the law’ of the superior courts. Instead, so far as it seemed necessary, they devoted all their energies to binding the courts to strict observance of the statutes promulgated by the political assemblies.^ A striking example of the latent opposition between legislative and judicial powers is the judicial control of statutes, in particular in the United States-Judicial review is one of the fundamental institutions of the United States, although it is not a principle expressly recognized by the Constitution, but was introduced and developed by the case law of the Supreme Court from 1803. As a result the Americanjudiciary, and in particular the Supreme Court, has the power to declare a statute promulgated by the legislative bodies (Congress and the President) unconstitutional and to prevent it from being applied.

In Great Britain, on the other hand, where there is no written constitution and where the sovereignty of Parliament is a funda­mental principle, judicial review is unknown. The Belgian Constitu­tion makes no mention of it, and the Cour de Cassation has to the present day held firm to its case law going back more than a hundred years and refused to control the constitutionality of Statutes-Judicial control exists only in a few legal systems.¹⁰ The principle of a control on the constitutionality of statutes can scarcely be challenged, and if it is accepted that Parliament is bound to respect the Constitution, and that in doubtful cases the judiciary is the power most competent to pronounce on the constitutionality of a statute, then judicial review is the most logical solution. There is, however, the legal objection that the representative assembly of the people expresses the will of the sovereign nation â€?from which all powers derive’ and so

⁸ D. MellinkofF, The language of the law (Boston and Toronto, 1963), 133.

⁸ Recall Robespierre’s remarks: above, section 67.

^,o See M. Cappelletti, Processo e ideologic (Bologna, 1969), 477-510; Uem., ^lQuelques precedents historiques du Contrdlejudiciaire de la Constitutionnalite des lois^,, Studi in memoria di TUlU Ascarelli, v (Milan, 1969), 2,781-97; idem., Judicial review in the contemporary world (Indianapo­lis and New York, 1971). cannot be subordinate to the will of another institution; the corollary of this is that, if Parliament violates the Constitution, there is no sanction, but this is generally accepted as a necessary consequence. In Belgium the refusal of the Cour de Cassation, even in its recent case law, to run the risk of judicial review is no doubt partly to be explained by a concern that this would involve the judiciary in political and social conflict. Yet now that the problem of judicial control and the role of the Cour de Cassation has arisen, it is a topical issue in legal and political circles in Belgium.¹'

In France the sovereignty of the legislature is firmly established, and judicial control of the constitutionality of statutes is a recent development. There is a long tradition of administrative law, which is applied by the Conseil d^,Etat, but constitutional law, which is the province of the Conseil Constitutionnel, is a more recent innovation. Since the creation of the Conseil Constitutionnel by the Constitution of the Fifth Republic in 1958, development has proceeded apace; and since 1971 the Conseil Constitutionnel has assumed responsibility for handing down completely Impartialjudgments on the constitutiona­lity of statutes, and for supervising parliamentary legislation which might infringe fundamental rights. This trend was reinforced by a constitutional statute of October 1974, which allowed parliamentary minorities to attack legislation before the Conseil Constitutionnel. The situation in France has therefore now come close to that in other European countries. Yet, although judicial control is obligatory for organic laws (as defined by the Constitution) and optional for ordinary laws, it is still subject to important restrictions. Individuals cannot address the Conseil, as only groups of at least sixty deputies or senators and a small number of the highest political officials have any standing to do so. And a statute can be attacked only in the short period between adoption of its text by Parliament and promulga­tion. Once a statute is in force, no judge can abrogate it by declaring it contrary to the Constitution.¹²

Legal scholars in favour of law reform also attacked the �tyranny

" The question whether statute was to be interpreted by the legislature or the judiciary has already been dealt with in connexion with the founding of the Cour de Cassation.

^,2 M. Cappelletti, â€?Repudiating Montesquieu? The expansion and legitimacy of “consti­tutionaljustice” Catholic University Law Review 35 (1985), 17-18; L. Favoreu, â€? Actualite et Iegitimite du controle des Iois en Europe occidentale’, Revue du droit public et de la science politique en Fraiue et a Γelranger 5 (1984), 1,147-201; C. Debbasch, Droit Constitutionnel et institutions politiques_i 2nd edn (Paris, 1986), 503; J. Gicquel and A. Hauriou, Droit Constitutionnel et institutions politiques, 8th edn (Paris, 1985), 910. ofjudges^,. Bentham, for instance, was violently critical of a judiciary which on its own authority decided what was the law, referred only to precedents and a vague body of customary rules, and was guided only by unwritten tradition. According to Bentham, lawyers would always defend unwritten law, since it was the source of their power; only the primacy of statute and the power of Parliament to legislate freely would put an end to the despotism of the lawyers.'³ Laurent fulminated just as fiercely against judges (although for quite differ­ent reasons) and reproached them for not recognizing the supremacy of the code and for usurping the prerogatives of the legislature. In this dispute, advocates were not lined up on one side or the other. On the European continent they were independent of the legislature, the courts and the universities. In England they had traditional links with the judiciary which were formed at the beginning of their professional lives, when they learned their law as apprentices in the courts. The judges themselves were recruited from among the most successful barristers; a seat on the Bench was an honourable end to a career at the Bar. In England it sometimes also seems that judges and barristers have a common sense of belonging to a group initiated into a rather mysterious, almost religious heritage, which is inacces­sible to other men.