EAN: 9783428122165

COMPARATIVE STUDIES IN CONTINENTAL AND ANGLO-AM...

Although the problem of ratio decidendi concerns the essence of law and justice  very little
comparative work between the Continental and Anglo-American legal systems has been done on the
topic. Legal literature often repeats that it is one of the sharpest points of contrast between
the two legal cultures. Within the English speaking legal system  multiple opinions  both
concurring and dissenting  prevail where dissent among Continental judges only occurs behind
closed doors: the published decision indeed is always presented as the single and incontestable
opinion of the whole court. Historical reasons are generally put forward to explain that
contrast. Where in the Anglo-American Common Law system judges are asked - and always have been
asked - to present the materials and reasons upon which they based their judicial opinions  in
Ancien Régime continental Europe it was not considered necessary to formulate the reasons of a
decision and in most courts of the European Continent it was even formally forbidden to the
judges  until the end of the eighteenth century  to write down or even communicate orally the
secrets of their discussions and deliberations. To comparatists  this reveals two different
cultures among judges and lawyers. In Continental Europe there is much emphasis on the idea of
judging as a science which can be learned and reproduced with an impersonal rigour. The
Anglo-American judge is not considered to be such a trained scientist  he is merely a practised
craftsman. Can the history of ratio decidendi - but also the history of law and justice from
the Middle Ages to the nineteenth century - therefore be reduced to a total contradiction
between two legal cultures?

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