NCJ Number
130167
Journal
American Journal of Comparative Law Volume: 38 Issue: 1 Dated: (Winter 1990) Pages: 143-170
Date Published
1990
Length
28 pages
Annotation
The commentary discusses the contrast between case law and code law using Melvin Aron Eisenberg's "The Nature of the Common Law" as the basis of the discussion.
Abstract
A growing body of case law is an established feature of practical legal life in civil law countries. However, the theoretical treatment of legal reasoning has not kept pace with these developments. The major emphasis in systematic treatments of legal reasoning tends to be on problems of statutory interpretation rather than a comprehensive study of the principles and forms of reasoning employed by courts in the continuing development of the common law. Theories of legal reasoning center on the legitimacy of judges' decisions and the author suggests that social propositions play a pervasive role in common law reasoning. In a civil law context, social norms or policies which figure in judicial arguments will usually be embedded in relevant legislative texts. The interaction of these social propositions with doctrinal propositions are then discussed as are the value and function of comparative law as a field of study. 100 footnotes