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

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, t he 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 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.”