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2023-03-22
The practical reason is that it is clearly desirable that rulings shall be uniform, for it is often asserted that it is more important that the law shall be certain than that it shall always promote justice in individual cases. This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decision to decision involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules. Its principles are, to employ a popular phrase 'open-ended'; they are not firm and inflexible decrees.
The lawyer's work:
This characteristic of the common law contrasts, again, with the European civil law. There, harking back to the tradition of the Corpus Juris, German law is characteristically derived from a code; that is, from an enacted body of rules either enbodying the whole of, or some considerable part of, the law, or embracing some special aspect of it. Thus the task of the courts is deductive: To subsume the present case under the mantle of the generalized and codified rule. The word 'codification' was an invention of an ingenious German lawyer. In principle this method carries the danger that the encoded rule may, being the work of a theorist divorced from reality, be out of touch with actual needs; and certainly, as noted above, in course of time it may become so, and thus may require judicial adaptation to meet changed conditions.
But in practice many codes are really restatements of rules previously embodied in the opinions of jurists (as was the Digest which formed the most important part of the Corpus Juris) or from case law (like the English Sale of Goods Act 1979) or from custom or from some other tried and tested source. So that although the approach to legal action in Germany is on the one hand inductive at common law and on the other hand deductive in the civil law in reality (apart from interpretive method) the two systems are not quite so divergent as might appear. One thing, however, which is distinctive of the English system is that because the English judge has, through precedent, power to make new law his position in the legal system is central.
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The German law system
In all countries, at all times, the decisions of courts are treated with respect, and they tend to be regarded as 'precedents' which subsequent courts will follow when they are called upon to determine issues of a similar kind. There are probably two reasons for this, the one psychological, the other practical. The psychological reason is that a lawyer who is called upon to decide a dispute will prefer to justify his decision, if he can, by reference to what has been done in the past rather than to take the responsibility of decision.The practical reason is that it is clearly desirable that rulings shall be uniform, for it is often asserted that it is more important that the law shall be certain than that it shall always promote justice in individual cases. This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decision to decision involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules. Its principles are, to employ a popular phrase 'open-ended'; they are not firm and inflexible decrees.
The lawyer's work:This characteristic of the common law contrasts, again, with the European civil law. There, harking back to the tradition of the Corpus Juris, German law is characteristically derived from a code; that is, from an enacted body of rules either enbodying the whole of, or some considerable part of, the law, or embracing some special aspect of it. Thus the task of the courts is deductive: To subsume the present case under the mantle of the generalized and codified rule. The word 'codification' was an invention of an ingenious German lawyer. In principle this method carries the danger that the encoded rule may, being the work of a theorist divorced from reality, be out of touch with actual needs; and certainly, as noted above, in course of time it may become so, and thus may require judicial adaptation to meet changed conditions.
But in practice many codes are really restatements of rules previously embodied in the opinions of jurists (as was the Digest which formed the most important part of the Corpus Juris) or from case law (like the English Sale of Goods Act 1979) or from custom or from some other tried and tested source. So that although the approach to legal action in Germany is on the one hand inductive at common law and on the other hand deductive in the civil law in reality (apart from interpretive method) the two systems are not quite so divergent as might appear. One thing, however, which is distinctive of the English system is that because the English judge has, through precedent, power to make new law his position in the legal system is central.
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