Civilian Statutes and Judicial Discretion
Symeon C. Symeonides
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
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
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, t he reciprocal relationship between the legislature and the
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 O R 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.”