Reassessing the Civil Law Tradition: the Changing Role of the Judge Annual Lecture in Law & Society 2014

Professor Guarnieri is from the Department of Political and Social Sciences at the University of Bologna. Traditionally, the civil law judge has been depicted as the faithful servant of the legislature, the “mouth of the law”, according to the influential definition of Montesquieu. In recent decades, however, there has been a profound transformation in civil law countries. Judicial review of legislation has been introduced widely, judicial guarantees of independence have been strengthened, and judges are increasingly taking a new, managerial role in the administration of justice. These profound changes in the role of the judge emphasize her active role in the legal process. Is she, as a consequence, becoming increasingly similar to some of her common law brethren? Or does the “new” civil law judge retain her distinctive identity? Is this new “Euro-legalism” merely mimicking American “adversarial legalism”, with all its costs and limits, or instead, is it bringing a significant improvement to civil legal systems?