Legal Actors: Tradition and Transition
The division of legal labor in the civil-law world is greatly influenced by the traditional dogma of legal science. This generally accepted legal “folklore,” as Prof. John Merryman refers to it, deeply affects the way legislators, judges, and lawyers work.
Legal Scholars
According to the legal folklore, the legal scholar does the “basic thinking” for the legal system. Indeed, academic lawyers continue to enjoy an honored place in the civil-law tradition. The civil-law codes historically have been greatly influenced by the work of legal scholars, as has been indicated in the earlier historical section of this treatise. Judges and legislatures, as a general matter, look to legal scholars for definitive views on the law. Though legal scholarship is not a formal source of law, the “doctrine” as developed by scholars is highly valued in the civil-law tradition.
The Legislature
The legislature in the civil-law tradition strives to supplement and update the codes in those areas in which the legal scholars have suggested that codes are defective or incomplete. New legislation, therefore, in theory employs the concepts and follows the structure established by the legal scholars and embodied in the earlier codes. Legislatures seek completeness and clarity, attempting to produce laws that are consistent with the tenets of legal science and compatible with the established legal order.
Judges
Judges typically enter judicial service at the lower levels of the judiciary—they enter directly from law school after passing state qualifying examinations. Judicial service is analogous to a career in civil service in the United States, with judges moving up the court hierarchy based on seniority and merit. The standard image of the civil-law judge is one of “a civil servant who performs important but essentially uncreative functions.”
The judge’s role is a simple and narrow one, limited by strict notions of legislative supremacy. Civil-law judges, in theory, are the “operators” of the system designed by legal scientists and built by legislators. Since there is only one correct solution to a legal problem, according to legal science and the developed doctrine, judicial discretion or interpretation becomes largely unnecessary.
Legal Education and Lawyers
The basic civil-law training is an undergraduate education in law. Courses tend to focus on general legal principles, as opposed to professional skills and problem solving. Such practical skills are acquired, if necessary, through later apprenticeship. Consistent with the tradition of legal science, civil-law students study legal treatises that expound the established principles of the law with little “case-method” analysis. Active class participation is unusual; typically the professor lectures to large classes.
A civil-law student chooses, upon graduation, among the several branches of the legal profession. Since there is little mobility within the profession, the student’s choice is likely to be final. These choices include a career as a judge, a public prosecutor, a government lawyer, an advocate (private practice), or a notary.
In most civil-law countries, private legal practice is roughly divided between the advocate and the notary. The advocate meets with and advises clients, and represents them in court. Advocates generally serve as apprentices to experienced lawyers for several years after law school, and then practice law in small firms or as solo practitioners. Private lawyers are generally governed by mandatory bar associations, which set practice rules and fee schedules.
The civil-law notary serves three basic functions: (1) drafting legal documents such as wills, corporate charters, and contracts; (2) authenticating such documents in legal proceedings; and (3) keeping records on, or providing copies of, authenticated documents (also called “public acts”). Entry to the notary profession generally involves taking a state examination.
Government lawyers serve either as public prosecutors or as lawyers for government agencies. The public prosecutor plays a dual role in the civil-law tradition. In addition to preparing the government’s case in criminal matters, the prosecutor represents the public interest in some civil cases. On the theory that the parties to a civil case will not provide the judge with a full picture of the facts and law, the prosecutor may intervene to assert the public interest, as opposed to the interest of the state. In some civil-law countries, the public prosecutor is trained as a judge, and may move easily from one position to the other during his or her career.