Civil Law Tradition

The Many Legal Institutions that Support Contractual Commitments

“…There is as yet no account of why civil code systems, although lacking a historical body of judge-made law, cannot also behave in this way. Schneider (2001), for example, presents evidence that German judges rely extensively on precedent in deciding cases under the civil code; Merryman (1985) suggests that this is generally true in many civil law systems. Institutions such as the practice of publishing and disseminating legal decisions and the subtle norms of judicial behavior and preferences are likely to play a far more important role in the development of a vibrant adaptive contract law than whether or not the formal "source" of law is a civil code.…”

“…Conversely, "code" systems may be more or less responsive to change depending on judicial practice. Indeed, Merryman (1985) presents the view that the goal of the civil code of France in particular was precisely to break from the past and to locate the power to change the law not in a backward-looking judiciary but a forward-looking legislature.…”

“…(Merryman 1985) Although litigants may provide documents in their possession and suggest potential witnesses, German judges, for example, take on significant responsibility for obtaining additional documents and testimony, shaping the development of evidence, questioning witnesses and determining the order in which issues will be investigated. (Langbein 1985) The development of case-specific human capital is therefore more heavily dependent on judicial and bureaucratic incentives and resources.…”

“…These coordination functions are distinctively different in Anglo-American systems, in which there is a culmination in a single event-namely a trial-and civil law systems, in which evidence and legal theories are developed and explored in a series of hearings that can address evidence in a piecemeal fashion and which are not governed by a strictly sequenced presentation of plaintiff's and then defendant's case. (Merryman 1985) Coordination also requires effective information systems for tracking cases and reliably storing documents and evidence of the actions taken by the court (such as orders that have been issued) and the parties (such as compliance with filing deadlines and procedural obligations or the submission of motions or other requests for court action). Information systems are also important for implementing procedural and jurisdictional rules coordinating the relationship between courts over time and space: has the matter already been adjudicated in this court?…”

Does Legal Tradition Affect Competition Policy Performance?

“…Similarly, judges and administrative agencies are circumscribed from commenting on or influencing the development of legal doctrines (Merryman, 1985). Others raised related concerns.…”