Transition in the Civil-Law World
As commentators both within and outside the civil-law world have observed, theory and practice are often in tension, and this tension is reflected in the changing roles of the actors in the legal system. Legislative practice often falls short of its objective to provide a clear, systematic legislative prescription for every legal problem that may arise. As a result, judges frequently must interpret vague code sections, and there is a growing body of judge-made law that provides a gloss on the codes. In countries with older code systems, such as France, the effects of judicial interpretation are particularly obvious and far reaching. Thus, in France the law of delict (torts), which is covered only in the most general way by the Code Civil, is primarily the product of modern judicial decisions.
Lawyers, in turn, tend to do more than simply peruse the codes for relevant provisions. The decisions of the high courts are regularly published and lawyers cite them in subsequent cases. Likewise, judges rely on prior decisions to support their own case analysis. As in common-law systems, judges look to higher court decisions as final, authoritative rulings on interpretation of statutes, and a de facto system of precedent has taken root.
The civil-law world, then, is in transition. The gap between theory and reality has been aptly summarized by Merryman: