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It is hard not to feel a sense of covert national pride — a diminishing resource — at the comparison of our judges’ modus operandi with that prescribed by article 5 of the French Civil Code, dating from the time of Napoleon. This forbids French judges to make any general statement of legal principle in any case before them, or indeed to construe the code — the very activities which English judges regard as at the core of their function. As Lord Sumption, another Justice of the Supreme Court, has pointed out, the ancient fiction promulgated by Blackstone in the 18th century, that judges discover legal principles in the luxuriant undergrowth of previous decisions, is just that: instead, modern English judges consciously seek to keep the law abreast of current social conditions and expectations.

By contrast, judicial decisions in civilian jurisdictions are no more than glosses on an unchanging legislative code. While judges in these countries are not allowed to pronounce by way of principle on what the codes mean, foreign law professors are under no such inhibition. Lord Goff was a keen comparative lawyer (i.e. one interested in examining and sometimes adopting solutions to legal problems offered by the civil law), but he thought that the “astonishing” and “dominating” influence of academic lawyers in civil law systems was a massive incubus of learning, casting a shadow under which it was a relief for common lawyers, with their “simple, practical island story”, not to have to live.

English judges are traditionally drawn from the upper ranks of the legal profession — whereas on the continent judges (a far more numerous body than in England) are typically appointed straight after completing their law studies at university. The recently retired President of the Supreme Court, Lord Neuberger, has favourably contrasted English common law — adaptable to fast-changing practical and commercial realities, applied by late-entry judges familiar with real world problems as a result of their decades of legal practice — with an academically constructed set of rules applied by judges who are more akin to state functionaries, having spent their whole careers in a “judicial cocoon”.

When a judge in England expresses or develops a common law principle, this is always only a working hypothesis, and is not usually cast in theological terms. It is expected that other judges will qualify, improve and maybe in due course depart from it. Lord Goff again: “Continental lawyers love to proclaim some great principle, and then knock it into shape afterwards. Instead the boring British want to find out first whether and, if so, how these great ideas are going to work in practice. This is not at all popular with the propagators of the great ideas.” The European approach is to apply principles top-down, rather than to define the legal issue by reference to the facts of the case; it favours fixed and easily-applied rules over pragmatism and flexibility. It is irresistible to see here a parallel with the contrast between the British and continental philosophical systems (especially the German): the common-sense empiricism of Hume (say) compared with the synthetic a priori truths proved to his own satisfaction by Kant.
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