DeFabritiis.Lost in Translation Oral Advocacy in a Land Without Binding Precedent.pdf

45 see m erryman p érez p erdomo supra note 35 at 2

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45 See M ERRYMAN & P ÉREZ -P ERDOMO , supra note 35 at 2-3. 46 See M ERRYMAN & P ÉREZ -P ERDOMO , supra note 35 at 24; see also P ODGOR & C OOPER , supra note 14 at 4. In civil law-based systems, all jurisdictions have a Code, a systematic and comprehensive statement of the whole field of law that is typically drafted in a single event with addition enacted as needed. 47 Tetley, supra note 7 at 683. 48 Id . 49 See M ERRYMAN & P ÉREZ -P ERDOMO , supra note 35 at 14.
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LOST IN TRANSLATION: ORAL ADVOCACY IN A LAND WITHOUT BINDING PRECEDENT. __________________________________________________________ 13 from the Corpus Juris Civilis , provide the core of the law. 50 General principles are systematically and exhaustively exposed in the codes while particular statutes complete them. 51 But civil law statutes do not provide specific definitions; instead, they state principles in broad, general phrases. 52 Code principles are not explained precisely. Rather, they are stated concisely so that they may be exhaustive. 53 This structure is in part the result of a desire for a legal system that was simple, nontechnical, and straightforward–one in which the professionalism and the tendency towards technicality and complication commonly blamed on lawyers would/could be avoided. 54 One way to accomplish this was by stating the law clearly and in a straightforward fashion so ordinary citizens could read it and understand their rights and obligations without having to consult lawyers or go to court. 55 A civil law judge applies the law; he does not create it. 56 In part this is due to the function of a civil law judge as a civil servant. 57 A judicial career is but one of several possibilities open to law school graduates. 58 A prior 50 Tetley, supra note 7 at 703. 51 Id . 52 Id . 53 Id . 54 See M ERRYMAN & P ÉREZ -P ERDOMO , supra note 35 at 29. 55 Id. 56 Tarufo & La Torre, supra note 20 at 136. 57 See M ERRYMAN & P ÉREZ -P ERDOMO , supra note 35 at 35. 58 See M ERRYMAN & P ÉREZ -P ERDOMO , supra note 35 at 35 Rise in the judiciary is at a
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LOST IN TRANSLATION: ORAL ADVOCACY IN A LAND WITHOUT BINDING PRECEDENT. __________________________________________________________ 14 career in the public or private sector is unnecessary, a law student may become a judge immediately following graduation. 59 The great names in civil law are not those of judges but those of legislators and scholars. 60 The scholar is the real protagonist of the civil law tradition. 61 Legal scholars are the creative force behind the law, by publishing commentaries on the status of the law and how it should be interpreted and applied. 62 Although scholarly texts are not a primary source of law, they are doctrinally definitive and indispensible to the systematic and comprehensive understanding of the code. 63 The doctrine guides both judges and legislators toward consistency. 64 Scholars mold the civil law tradition by using the formal sources of the law to create a model of the legal system.
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