Article by José Trías Monge
In this Article, published posthumously, the author traces the history of judicial methodology in mixed jurisdictions. In particular, the author examines the experiences of Puerto Rico, Louisiana, the Philippines, and Quebec—jurisdictions in which the civilian tradition of Spain or France preceded incorporation of the common law of either the United States or England.
Apart from substantive differences, civilian and common law modes of adjudication differ markedly: civil law judges, unlike their common law counterparts, are members of a career corps, eschew the citation of precedent, and do not sign their opinions. Similarly, civil and common law courts look to differing categories of sources to guide their adjudicatory projects. Mindful of these differences, the author describes the arrival of common law methodology, noting that while the choice of method would normally be a question for the affected jurisdiction to decide, this was not the case. Instead the British or American sovereign created judicial institutions on the Anglo-American pattern (or transformed existing civilian courts to that pattern), and their appointed common-law trained judges developed legal methodologies consistent with their own traditions and prejudices. Afterwards they developed special techniques and rationalizations for assimilating the common law which the author describes as the Fantasy of the Superior Law, the Fantasy of the Wise Mix, and the Fantasy of the Unification of the Law.
The Article concludes with the observation that while a civilian renaissance has to some degree redressed this assimilation of the past, the civil law in these mixed systems should be regarded as an endangered specie. To protect it, the author calls for a new methodology based upon expanded civilian research, fully informed comparisons, and creation of a strong presumption disfavoring the use of common law materials in the interpretation of civil law provisions.
About the Author
José Trías Monge. M.A., 1943, LL.B., 1944, Harvard University; J.S.D. 1947, Yale University. Former Chief Justice, Supreme Court of Puerto Rico.
Citation
78 Tul. L. Rev. 333 (2003)