Civilian Statutes and Judicial Discretion

• Author: Symeon C. Symeonides
• Position: Alex L. Parks Distinguished Chair in Law and Dean Emeritus, Willamette University; Formerly Judge Albert Tate Professor of Law, Paul M. Hebert Law Center, Louisiana State University; LL.B. (Priv. L), LL.B. (Pub. L.), LL.M., S.J.D., LL.D. (h.c.), Ph.D. (h.c.).
• Pages: 1125-1140

Civilian Statutes and Judicial Discretion Symeon C. Symeonides ȗ INTRODUCTION: THE PERENNIAL TENSION AND THE QUEST FOR AN EQUILIBRIUM René David, the famous French comparatist, once said that “[t]here is and will always be in all countries a contradiction between two requirements of justice: the law must be certain and predictable on one hand, it must be flexible and adaptable to circumstances on the other hand.” 1 Indeed, the tension between the need for legal certainty and predictability on the one hand, and the need for flexible, equitable, and individualized solutions on the other is as old as law itself. Aristotle described this tension more than 23 centuries ago when he spoke of the role of equity as a necessary corrective of positive law. 2 Twenty centuries Copyright 2016, by SYMEON C. SYMEONIDES. * Alex L. Parks Distinguished Chair in Law and Dean Emeritus, Willamette University; Formerly Judge Albert Tate Professor of Law, Paul M. Hebert Law Center, Louisiana State University; LL.B. (Priv. L), LL.B. (Pub. L.), LL.M., S.J.D., LL.D. (h.c.), Ph.D. (h.c.). This Essay is dedicated to Professor Alain A. Levasseur, with brotherly affection and admiration for his impeccable integrity, his humanity, his four decades of civil-law teaching, his scholarship, and his leadership in preserving and promoting the cause of the civil law in Louisiana. 1. RENÉ DAVID, ENGLISH LAW AND FRENCH LAW 24 (1980). 2. See ARISTOTLE, THE NICOMACHEAN ETHICS bk. V, at 4-7, in 2 The Ethics of Aristotle 140–41 (Alexander Grant ed., Longmans, Green & Co. 2d rev. ed. 1866) (c. 384 B.C.E.) (“[T]he law always speaks in general terms, yet in many cases it is impossible to speak in terms that are both general and correct at the same time. In those cases, then, in which it is necessary to speak in general terms but not possible to do so correctly, the law provides for the majority of cases, with full awareness of the deficiency of its provisions. Thus, when the law pronounces a general rule and thereafter a case arises that is not covered by the general rule, then it is proper, where the legislator’s pronouncement is defective because of its over-simplicity, to rectify the defect by deciding in the same way as the legislator would have decided . . . had he been cognizant of the case. . . . This is in essence the nature of the equitable ( epieikes ): A corrective of the law when law is defective due to its generality. In fact, this is why it is impossible to legislate about certain matters and why it becomes necessary to address them through [ad hoc] Resolutions. Undefinable matters cannot be regulated by definite rules.” (Author’s translation)). Unless otherwise noted, all translations are the Author’s. 1126 LOUISIANA LAW REVIEW [Vol. 76 later, two French legal philosophers took opposing positions. Rousseau spoke of the legislator’s inability to foresee changing circumstances, noting that “[a] thousand cases against which the legislator has made no provision may present themselves.” 3 In contrast, Montesquieu thought that judges should be no more than “the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor.” 4 Although speaking in a different context, Voltaire apparently agreed with Rousseau when he wrote the inimitable: “Uncertainty is an uncomfortable position, but certainty is an absurd one.” 5 The common assumption is that civil law systems aim for certainty, but common law systems aim for flexibility. Although this Essay is limited to civil law systems, both systems face the same tension between these two competing yet necessary goals, and both strive for the optimum equilibrium in light of their own needs and values. Naturally, this equilibrium differs not only from system to system, but also from subject to subject and from time to time. What may be the “right” equilibrium for one subject or period is not necessarily so for another. Thus, the quest for the golden mean is universal and perpetual. This quest surfaces at several junctures in the architecture, methodology, and operation of a legal system, including: (1) its statutory design, (2) the degree of discretion the legal system allows judges, and (3) more generally, the reciprocal relationship between the legislature and the judiciary. The Code Napoléon provides an early example of the legislature’s ambivalence toward the judiciary. Article 5 provides that “[j]udges are forbidden to pronounce decisions by way of general and regulative In sources published in non-western languages, the English translation is from a translation into another western language. 3. See JEAN JACQUES ROUSSEAU, THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL RIGHT bk. IV, ch. VI, at 98–99 (G.D.H. Cole trans., J.M. Dent & Sons 1923) (1762) (“The inflexibility of the laws, which prevents them from adapting themselves to circumstances, may, in certain cases, render them disastrous . . The order and slowness of the forms they enjoin require a space of time which circumstances sometimes withhold. A thousand cases against which the legislator has made no provision may present themselves, and it is a highly necessary part of foresight to be conscious that everything cannot be foreseen.”). 4. 1 MONTESQUIEU, THE SPIRIT OF THE LAWS 163 (Anne M. Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748). 5. Letter from Voltaire to Frederick II of Prussia (Nov. 28, 1770), in 12 OEUVRES COMPLÈTES DE VOLTAIRE 703 (1817). The phrase quoted in the text is the most common translation of Voltaire’s phrase “Le doute n’est pas une condition agréable, mais la certitude est absurde.” 2016] CIVILIAN STATUTES AND JUDICIAL DISCRETION 1127 dispositions on causes which are submitted to them.” 6 Echoing Montesquieu’s prescription, this article reflects the political realities of the pre-revolutionary period, which was marked by the abuses of the ancien regime’s courts—the infamous Parlements . Article 5 was intended to ensure that the unelected judges would not directly or indirectly engage in judicial lawmaking through their jurisprudence. The Code, however, also provides in Article 4 that “[t]he judge who refuses to judge, under pretext of the silence, obscurity or insufficiency of the law, may be subject to prosecution for denial of justice.” 7 Article 4 is susceptible to different interpretations, including one to the effect that—like Article 5—the drafters directed the article against a specific pre-revolution judicial practice. The better view, however, is that Article 4, far from proclaiming that the Code is gapless, recognizes the existence of lacunae and requires the judge to fill them through deduction from the Code’s general principles and reasoning by analogy. In this sense, Article 4 points away from Montesquieu’s vision of a passive judiciary and toward Rousseau’s pragmatic understanding of the legislature’s predictive abilities. Apparently, the Code’s drafters shared this understanding when they wrote that for the legislateur “to anticipate everything is a goal impossible of attainment.” 8 Consequently, the legislator’s role is “to set, by taking a broad approach, the general propositions of the law, [and] to establish principles which will be fertile in application. . . . It is for the judge and the jurist, imbued with the general spirit of the laws to direct their application.” 9 In the intervening centuries, the French judiciary gradually and creatively asserted itself and has assumed a much more important role in shaping French law than Article 4 contemplated. Today, the jurisprudence of the Cour de Cassation is much more important than the Code’s drafters envisioned. Most French judges do not consider themselves as the mere 6. CODE CIVIL[C. CIV.] art. 5 (1804) (Fr.) (Author’s translation). 7. Id. art. 4. 8. Portalis et al., Texte du discours préliminaire , in 1 LOCRÉ, LA LÉGISLATION CIVILE, COMMERCIALE ET CRIMINELLE DE LA FRANCE, 251, 255 (1827) (Author’s translation). 9. Id. (Author’s translation). 1128 LOUISIANA LAW REVIEW [Vol. 76 mouthpieces of the legislature, 10 even if they continue pretending to write in that fashion. 11 In the meantime, the establishment and growth of the European Court of Justice and its increasingly expanding role in shaping European Union law has dramatically transformed the continental legal landscape by altering the previously established hierarchy of sources of law and elevating the role of judicial precedent. 12 Thus, the question today is no longer whether judges may act to fill statutory lacunae, but rather whether and to what extent judges may deviate from the statutory text. This Essay discusses this question in a limited context by examining recent statutes in which the legislature itself authorizes such a deviation. The context is further limited to one particular legal field, which happens to be the Author’s specialty—private international law (“PIL”) or conflict of laws—and more specifically, the Essay focuses on PIL codifications enacted in the last 50 years. Part I enumerates the various grants of legislatively authorized discretion in these codifications. Part II then focuses on the most explicit of those grants—“escape clauses.” The Essay concludes by attempting to draw some conclusions about the evolving relationship between legislators and judges and the modern art and science of codification. 10. For an excellent portrayal of the actual role played today by the French judiciary in the French legal system, see Mitchel de S.-O.-I’E. Lasser, Judicial (Self-) Portraits: Judicial Discourse in the French Legal System , 104 YALE L.J. 1325 (1995); see also JOHN P. DAWSON, THE ORACLES OF THE LAW 263–431 (1968); ARTHUR TAYLOR VON MEHREN & JAMES RUSSELL GORDLEY, THE CIVIL LAW SYSTEM 97–126, 215–45, 1127–60 (2d ed. 1977); Vincy Fon & Francesco Parisi, Judicial Precedents in Civil Law Systems: A Dynamic Analysis , 26 INT’L REV. L. & ECON. 519 (2006). 11. As one contemporary French judge put it, “[t]he American judge...