Case Law in the Making

Abstract

By the end of the middle ages and in early-modern Europe, judges in superior or central courts had risen to a prominent position in society and played a crucial role in legal developments. Whether in the Common Law system or in continental Europe, the courts' decisions became a focus for legal reasoning, forensic arguments and doctrine. Yet, it remains controversial to what extent these developments reflected the emergence of case-law in a modern sense. From a comparative perspective, it is also questionable whether, in spite of obvious institutional and procedural differences, the Common Law and the European Civil Law traditions produced a corpus of judge-made law which, if not by the way it was elaborated, at least by its results in the respective legal systems, played a similar role in the constant interaction between the various sources of law. The present volumes, which are a sequel to the volume "Judicial Records, Law Reports, and the Growth of Case Law" (J. H. Baker ed.), published in 1989, specifically consider the relationship between judicial records and law reports. The emphasis of the contributions is on the techniques applied by the authors of both records and reports. Records, whether in the Common Law tradition or in continental Europe, developed mainly in order to satisfy procedural requirements, whereas the authenticity of early reports did not meet the same standards as in modern times. Both these observations raise the question of the purpose of records and reports in the law-making process. Volume 1 contains essays discussing these questions in the Anglo-American tradition (Common Law, Equity, English Canon Law) and in various continental-European traditions (Italy, France, Germany, the Low Countries and the Roman Catholic Church). Volume 2 illustrates these essays by producing extensive samples of both records and reports in the systems reviewed in the first volume. Thus, the present publication offers the unique combination of scholarly texts which review the latest results of current legal-historical debates on the role of judges' decisions in medieval and early modern law, and, for the first time, a source-book of the courts' practices and the reporters' methods in a wide range of legal systems.Legal scholars from every nation are usually guided by the formations of their own legal system and, if they do dare to cross boundaries, by the two big legal »families«: the continental European and the Anglo-American legal system. These two legal systems are usually treated as systems that isolated themselves and have separate historical developments. The goal of the CSC is to correct this skewed view. On the one hand, each of the two legal systems never formed a monolithic unit: one only has to bear in mind the differences between the German and the French legal system or the fact that US Law is drifting away from English Common Law. On the other hand, the model of two isolated legal systems has proven to be fragile and antiquated: the mutual influence and common features are forces that have shaped the legal development substantially on both sides. It is also due to the research results published so far in the CSC, that these notions have been corrected. It is the intent of the CSC, which is kindly sponsored by the Gerda Henkel Foundation, to further bridge the gap between the two legal systems.