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Dear Mike
I am not fully convinced of the answer given in the book about below question.
Which of the following statements regarding a civil law system is correct?
A Judge have full powers of interpretation
B It is based on codes of written law
C Judges cannot create precedentsThe answer is the book is B
My answer is B and C. C because in the civil law system Judges cannot create precedent, whereas they can in Common law.
Do you agree with me? if not could you please help to understand.
Thanks
Gabbi
I see that b) is correct so the only question is “why is c) not also correct?”
A precedent is not CREATED by a judge. It is created as a result of the concept of judicial precedence where a judge in a similar subsequent case is persuaded to follow the thinking of the first judge and hence a precedent is created.
It’s a moot point and is really dependent upon the precision of the interpretation of the words used. I heard a radio programme today involving the opening of a new restaurant. On the menu was a dish called “yesterday’s special” – the idea being that th erestaurant could serve the left overs from the previous day instead of throwing them away (it was a radio play concerning a fictional restaurant so don’t get upset or worried about food health standards!”
On the opening evening, one guest ordered “yesterday’s special” but was told that it wasn’t available. Why? Because this was the first day of the restaurant’s business so there was no left overs from the previous day.
Similarly, when a judge makes an innovative decision not having been bound to follow precedence, that decision itself does not create precedence. It’s only the following of that decision that determines its relevance as a decision to be followed
Is that clear?
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