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ing the defendant's involvement in the alleged offense. not thought to be either philosophical or a source of
When the dossier is compiled, the testimony and evidence analogies. 44
are "frozen" for use at trial. Such ''full disclosure" 11-8. Codification. a. General. Continental penal codes
before trial probably favors the prosecutor because once are often structured into a General Part and a Special
the material is included in the dossier, there are few, if Part. 45 The General Part contains provisions such as at-
any, obstacles in presenting the evidence to the court. 40 tempts, principals and participation, self-defense, suspen-
11-7. The Decisionmaking Process. a. The decision sion of sentence, and statute of limitations, which are ap-
process in a civil law proceeding is philosophically different plied uniformly to all offenses, while the Special Part deals
than that found in the common law. There is, of course, a with specific offenses.
factfinding function, but a judge must still apply the evi- b. In the civil law, if the judge is unable to find a provi-
dence presented against the "law." Generally speaking sion in legislative sources, he handles the "unprovided-
the "law," in a common law sense includes constitutional, for-case" in a manner different than a jurist in the com-
provisions, statutes, and decided cases. Treatises and other mon law.
secondary material also bear on the decisionmaking When the written law is silent or insufficient on an essential issue,
process. In civil law systems decisionmaking tends to go . . .[the] judge cannot refuse to adjudicate under penalty of being guilty
of a denial of justice. The various civil law countries have adopted
from the general to the smc, in a common law jurisdic- different formulae to guide and instruct the judges in this respect. Arti-
tion a judge often seeks initially for general guidance to cle 1 of the SwissCivil Code authorized the judge to render the decision
govern the specific situation under consideration. Addi- which he would make if he were [a]legislator; in France and in Belgium,
he is given only the instruction to adjudicate. . . . In Germany, the tradi-
tionally, the points of reference are different: a continental tion is that the judge must fd gaps in the written law; one way of doing
judge looks to legislation (often broadly written to allow this is to make use of customary law as a source of law, or else to resort
great interpretive leeway) while the common law counter- to general principles. Whatever the explanation given . . . or the tech-
nique used . . ., the civil law judges are not always limited to a mere ap-
part looks to individualizing cases or statutes which, ifap-
plication of the law; in effect they are obliged to make law. 46
plicable, provide the judge little discretionary power as to
c. Stare Decisis. The supremacy of legislation in civil
whether they should be applied. 41
law systems does not mean, however, that there is no
b. The influence of legislation. Not only is the judicial place for prior case decisions. While judicial decision are
process philosophically different, but legislation in civil law used from time to time in the common law to "fill the
countries also serves a different function. Of course both gaps" or to "make law" and can themselves become a
systems seek to balance competing values in various social source of law, case decisions in the civil law are generally
situations. But beyond that, a -cation in a civil law used only as sources of legislative interpretation. No case,
country attempts to indicate a philosophy of government even though decided by a reasoned decision based on an
"so as to furnish a legislative basis for juristic and judicial interpretation of legislation, is bin- in future cases, nor
is it precedent. Although a similar result may be achieved
development along modem lines." 42 In some respects
in a future case, it is not based on any concept of stare
the codes might be considered as a counterpart to a con- decisis, but rather is reached because a similar reasoning
stitution in a common law jurisdiction. Courts, if the ques- process and legislative interpretation has occurred.
tion at hand is not specifically covered by one of the arti-
In some countries like France and Belgium, the practice has been con-
cles of the relevant code, will reach a solution by analogy solidated that when a certain point has been consistently decided in the
from the legislative material at hand. same way by an appreciable number of cases, it becomes jurisprudence
constonre and is considered biding in future cases. Thi serves to stabi-
A code is not a lit of special rules for particular situations; it is, rather, a
lize the interpreiation of the law. . . .There is also an increasing tendency
body of general principles carefully arranged and closely integrated. A among attorneys to cite cases as well as codes and other legislative
code achieves the highest level of generalization based upon a scientific texts. 47
structure of classification. A code purports to be comprehensive and to
encompass the entire subject matter, not in the details but in the princi- Thus, while a common law judge may be constrained by
ples, and to provide answers for questions which may arise. The nature his awareness of the potential effect of today's decision on
of such a code naturally calls for a liberal interpretation in order that it the future, a civil law judge does not have to consider that
may serve as the basis of decision for new situations. . . . There is a great a decision may tomorrow be an "echo from the past." 48
respect and high regard for legislation as the basic source of the law. 43
44. ~ote,-~heLegitimacy of Civil Law Reasoning in the Common
In the United States the function of legislation is generally
Law: Justice Harlan's Contribution, 82 Yale L. J. 258, 279-80
(1972). For a discussion of the role of legislation in the common law
40. Id. at 534-36. See also, Goldstein, The State and the Accused: system, see Dainow, supra, note 7, at 425-26.
Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, 45. See Angel, The Collection of European Penal Codes and the
1180-92 (1960). Snrdy of Comparative Law, 106 U. Pa. L. Rev. 329 (1958).
41. Dainow, supra, note 7, at 431-32. 46. Dainow, supra, note 7, at 433.
42. Pound, Sources and Forms of Law, 22 Notre Dame Law 1,71 47. Id. at 426-27.
(1 946). 48. Rudden, Courts and Codes in England, France, and Soviet
43. Dainow, supra, note 7, at 424. Russia, 48 Tul. L. Rev. 1010, 1017 (1974).