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sanction. The Codes have unity and systematic arrangements; their This does not mean complete judicial freedom from authority-even
texts have a logical interdependence and coherence born of careful, con- where a "standard" is imposed, it is freedom only within limits. But it
scious legislative formulation. 10 involves a recognition that there are some situations, and some whole
When conflicts occur and litigation becomes neesay, the fm qdon fields of law, which lend themselves to individualized, discretionary ac-
is whether the problem is controlled by one or more Code articles. In the , tion by judges, in rather administrative capacities. Yet this still involves
great majority of cases this will be so, and an elaborate apparatus of in- no formation of judicial conceptualism, for the cases are to be truly in-
terpretation will be called into play. Regard will be had to the language of dividualized; since no subsequent judge will be bound to follow the in-
the text and the sense it conveys, the influence of other articles, con-
dividualized decision, and thus it shall have little future value. 16
siderations of the textual arrangement of the Code as a unit, historical
factors, the clarifying effect of the motifs of obscure passages, and Of course the civil law methodology is furthered by the
allowable areas within which the legislator has indicated that judicial dis- form of legal education in civil law countries. As might be
cretion may be used in taking account of special factors. The whole im- expected, the legal education of a civil lawyer tends to
port of the process is the ascertainment of the genuine signifkance of
focus on legislation and c~~cation, rather than on cases
the Code text. 11
as is the practice in the law schools in common law coun-
It is always the Code itself to which the judge fmt turns; in no case does
he allow himself to become insulated from the Code article by the tries. The methodology of a civil law training has been
doctrinal writing or the jurisprudence (decisions), both of which, stated as follows:
however, are additional factors which may be said to possess persuasive
influence. In some fields which have developed since the drafting of the In civil law countries, the student starts his study with codes and textbooks.
Codes, these two factors are necessarily of considerable importance, and He learns about the Justinian ccdGcations and their influence on
in these instances there may be said to be something approaching case his present day legal system. He is taught general principles and how to
law. There is, however, no doctrine of stare decisis, of interpretation or think in abstractions. It becomes part of his being to appreciate classifica-
tion and coordination of subject matter, and to take for granted a com-
otherwise. 12
prehensiveness of the law as systematic and a whole. It is only recently
In the absence of a controlling Code text, the civilian judge by no means in countries like France and Belgium that the law student has been re-
discards his Code. It is realized that properly drafted Codes have what quired to read some decided cases, and he ususally attaches only sec-
the civilian calls "organic harmony," and contain within themselves a ondary importance to the judicial decisions. He concentrates on the
social and legal point of view consistently maintained throughout. Legis- codes, the treaties, and the notes taken during the formal lectures by his
lative activity as expressed in Codes is deemed to be only the starting
professors. 17
point for further bold activity on all fronts, and the basis for all the
future legal development of the country, rather than as an exceptional 11-4.The Working Civil Model. a. To understand
phenomenon to be discouraged and stifled as in America. Therefore, more fully how a criminal case is processed under the civil
the civilian protects and extends his legislative text to a great variety of law, it is necessary to appreciate that the civil law
situations not precisely within its scope by use of "analogy." This
method of handling statutory material involves the decision of problems procedure has a different perspective than that of the com-
not covered in the Code, but analogous to those precisely covered, in a mon law. This has often been explained in terms of an ac-
manner consistent with a point of view revealed in the Code's disposi- cusatorial system (common law) versus an inquisitorial
tion of the problem specifically covered. The process consists of a deter- system (civil law). 18
mination of the projective value of Code articles. The contest is fought
over whether the analogy should be accepted, or whether there is an 6.The adversary model. An accusatorial (or adver-
argument a contrario or a competing analogy. Or the text may be jus sary) procedure starts from the premise that it is being con-
singulare, possibly by expressed command of the legislation in which cir- ducted between two sides, i.e., it is essentially a contest
cumstances it may not be projected analogically. 13
between the prosecutor and the defendant. As such, the
[AJsmodem civilians have freely recognized, the process is a creative participants generally frame the extent of the dispute by
one, since the judge ultimately has the power to accept or reject the
analogies, or to choose between them. Thus, in resorting to analogy, the the pleadugs and stipulations. The prosecutor, in partisan
judge is free of the legislator to a certain extent, yet it must be observed fashion, indicates what facts are necessary to "convict"
that, in this field of activity as well, the civilian juridical method is a the defendant, and attempts to prove such facts. The de-
socialized one, and one utilizing legislative, and not judicial conceptual- fendant, conversely, attempts to block those efforts.
ism. . . . This means that the civilian system is assured of a point of Under such a process the defendant cannot be forced to
departure for analogy which is more consistent with the demands of cur-
rent society, because the texts of the Code reveal a social attitude as to give evidence since to do so would destroy the "theoreti-
the harmonization of competing sccial interests, established by a cal equality between the contestants." 19 The role of the
socialized ratchet [i.e., legislative] process and are freer than cases can fmder of fact (whether judge or jury) is passive and he acts
be, under a system of precedents, from archiac and conceptualism and
historical rubbish. . . . 14 If neither the texts of the Code nor their projec- merely to determine who has prevailed in the contest. A
tion by use of analogy yields a solution, the civilian at least has a truly judge is present to ensure that the parties abide by the
"unprovided-for case." The next step at this point will vary considera- rules applicable to the conflict. Consequently, a great
bly. . . . 1s
number of technicalities can arise, with the result that an

10. Morrow, Louisiana Blueprint: Civilian Codification and Legal 16. Id. at 555.
Method for State and Nation, 17 Tul. L. Rev. 351, 548 (1943). 17. Dainow, supra, note 7, at 429.
11. Id. at 549. 18. For a discussion of the historical development of these different
12. Id. at 549-50. judicial concepts, see Damaska, Evidentiary Barriers to Conviction and
13. Id. at 552-53. Two Modes of CriminalProcedure:A Comparative Study, 121 U.Pa. L.
14. Id. at 553-54.
Rev. 506 (1973) [hereinafter referred to as Damaska].
1s. Id. at 554.
19. Id. at 563.