The Role of Judges:

Main objective remains the same: Courts and judges are to answer a question of law and
or to resolve dispute.

1. Training and recruitment of judges

2. Method of arriving at decisions
3. Personalization of judgements
4. Manner of writing legal opinions
5. Attitude of Judge on it discretion.

Common Law:
1. Training and recruitment of judges
- Has to be an attorney or Barrister
- With a number of years of experience and reputation.
Appointment:
- By government or elected by people.
(NB interesting note: SA they are elected by their peers.)
- Due to their background in practice, judges in these systems, where previous decision
take preference – they must be practical in their approaches. There should be no
difference in their way of thinking and approaching a matter, than from when they were
attorneys.

2. Method of arriving at decisions

- Search in the previous decision of a similar case
- If a statute is involved and the text is clear, the judge abides by its provisions, but if
there is doubt or ambiguity can avoid the statute's applicability again resort to a search
of previous decisions for common law authority as a basis of decision.
- Must give effect to the rule
- Common law have juries to decide

3. Personalization of judgements

- opinions are identified with their judicial authors; there can be dissenting or concurring
opinions, and each judge has the possibility of setting forth his own point of view.
- In this manner, the personality of a great jurist makes itself felt and appreciated, and
- such a person makes a substantial contribution to the development of the law.

4. Manner of writing legal opinions

- This is very organized: there is a gathering of all the facts that led to the dispute and
that furnishes the base of the legal argument.
- Then examine previous cases – similarities (Most lawyers would then use these case as
citations in their arguments)
- Finally they then decide which precedence is applicable and on that basis make a new
decision

5. Attitude of Judge on it discretion.

- Insufficient written law: judge here then will make a finding and a decision.
 - BUT when there is written law but it isn’t to the liking of the judge challenge becomes
to restrict the scope of its applicability.
-

Civil law:
1. Training and recruitment of judges
- Bigger difference between the judicial function and the being an attorney
- Attorney and judge have same education – after decide what career you want and the
necessary training will ensue.
- From law study straight to being a judge: they have a more theoretical approach

2. Method of arriving at decisions

- Search legislation for controlling principle & rules which govern the subject
- Rule is applied or interpreted to the specific facts.
- REASONING: from Rule case
- Given discretion
- Juries are non – existent or rare, and decisions are made by the judged.

3. Personalization of judgements
- The bench always remains anonymous

4. Manner of writing legal opinions

- Decision are much shorter.
- An outline of the relevant facts
- Statement of the applicable law or principle and rule of law
- Conclusion which results after the application of the law to the facts.

5. Attitude of Judge on it discretion.

- The judge here cannot refuse to adjudicate in fear that he won’t administer justice.
- There have been formulas which they can use to guide them and instruct them.

EXAMPLES:
• Article 1 of the the Swiss Civil Code authorizes the judge to render the he would
make if he were legislator;
• In France and in Belgium, he is given only the instruction to adjudicate.
• Article 21 of the Louisiana Civil Code indicates that the judge must decide
equitably according to natural law and reason or accepted usage.
• In Germany, that the judge must fill gaps in the written law; o this is to make
use of customary law as a source of law, to general principles.