THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM
The role assigned to the judge varies from one legal system to another. In the Anglo-Saxon legal systems, in the context of the absence of an independent legislative body, judge is the one who creates law; his mission consists in solving a specific case, given the existing judicial precedents; if he...
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Nicolae Titulescu University Publishing House
2013-05-01
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| Series: | Challenges of the Knowledge Society |
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| Online Access: | http://cks.univnt.ro/uploads/cks_2013_articles/index.php?dir=1_Juridical_Sciences%2F&download=cks_2013_law_art_057.pdf |
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| author | ELENA ANGHEL |
| author_facet | ELENA ANGHEL |
| author_sort | ELENA ANGHEL |
| collection | DOAJ |
| description | The role assigned to the judge varies from one legal system to another. In the Anglo-Saxon legal systems, in the context of the absence of an independent legislative body, judge is the one who creates law; his mission consists in solving a specific case, given the existing judicial precedents; if he can not find an appropriate rule of law, the judge has to create one and to apply it. On the other hand, in the continental system, creation of law is the mission of the legislator. Evolving under the influence of Roman law, the continental law systems differ from the Anglo-Saxons by: the assuming of Corpus iuris civilis; the tendency to abstraction, leading to the creation of a rational law; the rule of law, with the consequence of blurring the role of jurisprudence. In spite of these essential differences, the last decades of the twentieth century have found out the convergence of the written coded system and the common law system. Thus, the increasing of the legislature`s role in common law system is accompanied by the reconsideration of the judge`s role in the Roman-Germanic legal system. While Anglo-Saxons accept the "compromise" of coding, Continentals shyly step towards rethinking the status of law source of the jurisprudence. History has shown that, one by one, law and jurisprudence have disputed the the role of prime creator of law. Emphasizing the creative force of jurisprudence, Vladimir Hanga wrote: "The law remains in its essence abstract, but the appreciation of the jurisprudence makes it alive, as the judge, understanding the law, examining the interests of parties and taking inspiration from equity, ensures the ultimate purpose of the law: suum cuique tribuere”1. However, as we shall see below, in the Roman-Germanic law system, the creative role of jurisprudence still raises controversy. |
| format | Article |
| id | doaj-art-22030d0a2d1d4e8cba9ec5192d07e698 |
| institution | DOAJ |
| issn | 2068-7796 2068-7796 |
| language | English |
| publishDate | 2013-05-01 |
| publisher | Nicolae Titulescu University Publishing House |
| record_format | Article |
| series | Challenges of the Knowledge Society |
| spelling | doaj-art-22030d0a2d1d4e8cba9ec5192d07e6982025-08-20T02:43:00ZengNicolae Titulescu University Publishing HouseChallenges of the Knowledge Society2068-77962068-77962013-05-013-477483THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEMELENA ANGHEL0Lecturer, PhD, The Faculty of Juridical Sciences, “Nicolae Titulescu” University of Bucharest (e-mail: elena_comsa@yahoo.com).The role assigned to the judge varies from one legal system to another. In the Anglo-Saxon legal systems, in the context of the absence of an independent legislative body, judge is the one who creates law; his mission consists in solving a specific case, given the existing judicial precedents; if he can not find an appropriate rule of law, the judge has to create one and to apply it. On the other hand, in the continental system, creation of law is the mission of the legislator. Evolving under the influence of Roman law, the continental law systems differ from the Anglo-Saxons by: the assuming of Corpus iuris civilis; the tendency to abstraction, leading to the creation of a rational law; the rule of law, with the consequence of blurring the role of jurisprudence. In spite of these essential differences, the last decades of the twentieth century have found out the convergence of the written coded system and the common law system. Thus, the increasing of the legislature`s role in common law system is accompanied by the reconsideration of the judge`s role in the Roman-Germanic legal system. While Anglo-Saxons accept the "compromise" of coding, Continentals shyly step towards rethinking the status of law source of the jurisprudence. History has shown that, one by one, law and jurisprudence have disputed the the role of prime creator of law. Emphasizing the creative force of jurisprudence, Vladimir Hanga wrote: "The law remains in its essence abstract, but the appreciation of the jurisprudence makes it alive, as the judge, understanding the law, examining the interests of parties and taking inspiration from equity, ensures the ultimate purpose of the law: suum cuique tribuere”1. However, as we shall see below, in the Roman-Germanic law system, the creative role of jurisprudence still raises controversy.http://cks.univnt.ro/uploads/cks_2013_articles/index.php?dir=1_Juridical_Sciences%2F&download=cks_2013_law_art_057.pdfcreative role of jurisprudencecontroversycommon law systemcontinental systemjudicial precedents. |
| spellingShingle | ELENA ANGHEL THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM Challenges of the Knowledge Society creative role of jurisprudence controversy common law system continental system judicial precedents. |
| title | THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM |
| title_full | THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM |
| title_fullStr | THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM |
| title_full_unstemmed | THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM |
| title_short | THE RECONFIGURATION OF THE JUDGE`S ROLE IN THE ROMANO-GERMANIC LAW SYSTEM |
| title_sort | reconfiguration of the judge s role in the romano germanic law system |
| topic | creative role of jurisprudence controversy common law system continental system judicial precedents. |
| url | http://cks.univnt.ro/uploads/cks_2013_articles/index.php?dir=1_Juridical_Sciences%2F&download=cks_2013_law_art_057.pdf |
| work_keys_str_mv | AT elenaanghel thereconfigurationofthejudgesroleintheromanogermaniclawsystem AT elenaanghel reconfigurationofthejudgesroleintheromanogermaniclawsystem |