as a lawyer, to a specific court in a specific location. As Klerman(1999)notes, common law judges surely desire promotion to higher, more prestigious courts. However, the ex ante probability of any given judge advancing is quite small. Many judges on the U.S. federal courts of appeals, for example, are appointed to those posts as their first(and almost certainly last) judicial office rather than by promotion from a trial court or state court. The likelihood of advancing to one of the nine slots on the Supreme Court is so small that it cannot be, for a rational judge, an Important motivator By contrast, the new civil law judge is typically a recent law school graduate who has passed a qualifying examination for entry into a minor judgeship. To remain in the entry-level post for an entire career would be a clear mark of failure. Prestige is gained by promotions and postings to more desirable geographical locations. The civil law judge, then, has greater motivation than the common law judge to gain the favor of the executive branch Although there has been very little empirical study of judicial independence, the existing evidence suggests that the executive uses this motivation to its advantage in civil law countries In 1879, the French government dismissed or forced the resignation of thirty-eight administrative edges who were deemed insufficiently loyal to the government(Brown and Bell, 1998). Using recent data, Ramseyer and Rasmusen(1997)find evidence that Japanese judges who decide cases against the government receive less attractive postings than those who find in favor of the government. By contrast, Salzberger and Fenn(1999)fail to find evidence that the government of the United Kingdom uses promotions as a tool to reward judges who rule in favor of the government
9 as a lawyer, to a specific court in a specific location. As Klerman (1999) notes, common law judges surely desire promotion to higher, more prestigious courts. However, the ex ante probability of any given judge advancing is quite small. Many judges on the U.S. federal courts of appeals, for example, are appointed to those posts as their first (and almost certainly last) judicial office rather than by promotion from a trial court or state court. The likelihood of advancing to one of the nine slots on the Supreme Court is so small that it cannot be, for a rational judge, an important motivator. By contrast, the new civil law judge is typically a recent law school graduate who has passed a qualifying examination for entry into a minor judgeship. To remain in the entry-level post for an entire career would be a clear mark of failure. Prestige is gained by promotions and postings to more desirable geographical locations. The civil law judge, then, has greater motivation than the common law judge to gain the favor of the executive branch. Although there has been very little empirical study of judicial independence, the existing evidence suggests that the executive uses this motivation to its advantage in civil law countries. In 1879, the French government dismissed or forced the resignation of thirty-eight administrative judges who were deemed insufficiently loyal to the government (Brown and Bell, 1998). Using recent data, Ramseyer and Rasmusen (1997) find evidence that Japanese judges who decide cases against the government receive less attractive postings than those who find in favor of the government. By contrast, Salzberger and Fenn (1999) fail to find evidence that the government of the United Kingdom uses promotions as a tool to reward judges who rule in favor of the government
III. Historical and Ideological Distinctions A. Individual versus collective liberty The common law and civil law both evolved from a combination of roman law concept and local practices and share many substantive traits. The common law and civil law also played important roles in the creation of the modern English and French constitutional systems. Those roles were sharply divergent, however, and as a consequence each system has an ideological content distinct from the substance of particular legal rules During the seventeenth century, English common law became strongly associated with the idea of economic freedom and, more generally, the subject's liberty from arbitrary action by the crown. The seventeenth century witnessed the completion of a centuries-long process in which England's large landowners pried their land loose from the feudal system and became in practice owners rather than tenants of the king. Because landowners served as local justices of the peace and the landowning nobility as judges of last resort, the judges unsurprisingly developed legal rules that treated them as owners with substantial rights. The common law they created was principally a law of property. Thus the first of Sir Edward Coke's(1979 [1628])Institutes of the Laws of England is an extensive treatise on the law of real property, structured as a commentary on Littleton's(1903 [1481])earlier treatise that itself is devoted entirely to property law Blackstone(1979 [1765) describes the Court of Common Pleas, which resolved disputes between subjects, as"the grand tribunal for disputes of property Under the Stuart kings, both landowners and merchants were threatened by claims of royal prerogative. As described by North and Weingast(1989), the Stuarts faced persistent revenue shortfalls. The crown responded by coercing merchants to grant it loans, using claims of feudal
10 III. Historical and Ideological Distinctions A. Individual versus collective liberty The common law and civil law both evolved from a combination of Roman law concepts and local practices and share many substantive traits. The common law and civil law also played important roles in the creation of the modern English and French constitutional systems. Those roles were sharply divergent, however, and as a consequence each system has an ideological content distinct from the substance of particular legal rules. During the seventeenth century, English common law became strongly associated with the idea of economic freedom and, more generally, the subject’s liberty from arbitrary action by the crown. The seventeenth century witnessed the completion of a centuries-long process in which England’s large landowners pried their land loose from the feudal system and became in practice owners rather than tenants of the king. Because landowners served as local justices of the peace and the landowning nobility as judges of last resort, the judges unsurprisingly developed legal rules that treated them as owners with substantial rights. The common law they created was principally a law of property. Thus the first of Sir Edward Coke’s (1979 [1628]) Institutes of the Laws of England is an extensive treatise on the law of real property, structured as a commentary on Littleton’s (1903 [1481]) earlier treatise that itself is devoted entirely to property law. Blackstone (1979 [1765]) describes the Court of Common Pleas, which resolved disputes between subjects, as “the grand tribunal for disputes of property.” Under the Stuart kings, both landowners and merchants were threatened by claims of royal prerogative. As described by North and Weingast (1989), the Stuarts faced persistent revenue shortfalls. The crown responded by coercing merchants to grant it loans, using claims of feudal
rights to appropriate land and goods, and selling monopoly rights. Disputes over the security of property and executive intervention in the economy played a central role in Englands two tenth olution In those disputes, the common law courts and Parliament( whose members were drawn from the landowning and merchant groups)took the side of economic freedom and opposed the crown. The Court of Kings Bench decided, in the Case of Monopolies, that the kings sale of monopoly rights violated the common law. The courts, led by Chief Justice Coke, were accordingly drawn into confrontation with James I, who insisted that the absolute royal power trumped the common law. Coke' s insistence in a variety of cases that the common law bound even the king led James I to dismiss him and like-minded judges. Coke and later common law judges thereby came to stand for the protection of the rule of law and economic rights against royal power The French experience was very different. Judges, who were heroes in English constitutional development, were villains in French constitutional development. While security of economic rights was the motivating force in the development of English common law, security of executive power from judicial interference was the motivating force in the post-Revolution legal See Darcy v. Allen(The Case of Monopolies), 11 Co. Rep 84b, 77 Eng Rep. 1260 (1603). The story of the Case of Monopolies is, in fact, somewhat more complicated. As noted by Corre(1996), the court did not provide such a sweeping condemnation of royal grants of monopoly as Coke's report presents. Coke did not publish the report of the case until 1615 Moreover, Coke, in his capacity as Attorney-General, argued the case for the government, supporting the validity of the monopoly. After his appointment as Chief Justice, however, Coke resisted James I's claims about the extent of royal power, which undoubtedly influenced Cokes after-the-fact publication of the case report. Whether Coke's 1615 report is an embellishment of what the court actually said in 1603 is not of great moment for present purposes. The key facts are that by 1615, Coke was willing to declare that the common law trumped royal prerogative, and that assertion quickly acquired a life of its own
See Darcy v. Allen (The Case of Monopolies), 11 Co. Rep. 84b, 77 Eng. Rep. 1260 3 (1603). The story of the Case of Monopolies is, in fact, somewhat more complicated. As noted by Corre (1996), the court did not provide such a sweeping condemnation of royal grants of monopoly as Coke’s report presents. Coke did not publish the report of the case until 1615. Moreover, Coke, in his capacity as Attorney-General, argued the case for the government, supporting the validity of the monopoly. After his appointment as Chief Justice, however, Coke resisted James I’s claims about the extent of royal power, which undoubtedly influenced Coke’s after-the-fact publication of the case report. Whether Coke’s 1615 report is an embellishment of what the court actually said in 1603 is not of great moment for present purposes. The key facts are that by 1615, Coke was willing to declare that the common law trumped royal prerogative, and that assertion quickly acquired a life of its own. 11 rights to appropriate land and goods, and selling monopoly rights. Disputes over the security of property and executive intervention in the economy played a central role in England’s two seventeenth century revolutions. In those disputes, the common law courts and Parliament (whose members were drawn from the landowning and merchant groups) took the side of economic freedom and opposed the crown. The Court of King’s Bench decided, in the Case of Monopolies, that the king’s sale of monopoly rights violated the common law. The courts, led by Chief Justice Coke, were 3 accordingly drawn into confrontation with James I, who insisted that the absolute royal power trumped the common law. Coke’s insistence in a variety of cases that the common law bound even the king led James I to dismiss him and like-minded judges. Coke and later common law judges thereby came to stand for the protection of the rule of law and economic rights against royal power. The French experience was very different. Judges, who were heroes in English constitutional development, were villains in French constitutional development. While security of economic rights was the motivating force in the development of English common law, security of executive power from judicial interference was the motivating force in the post-Revolution legal
developments that culminated in the Code Napoleon The highest courts in pre-Revolutionary France, the Parlements, differed dramatically from the common law courts in England. They were part court, part legislature, and part administrative agency. They decided cases, promulgated regulations, and had partial veto power over royal legislation. As a practical matter, judicial offices were salable and inheritable. The purchase of a judgeship or other royal office automatically conveyed noble status and qualified the haser and his descendants for entry into the Parlements(Stone, 1986). The return on the investment was straightforward; in addition to obtaining prestige and various exemptions from taxation that accompanied noble status, judges enforced the rigidly controlled system of guilds and monopolies that characterized Bourbon France(Ekelund and Tollison, 1997) Like the Stuarts in seventeenth century England, the bourbons faced a fiscal crisis in eighteenth century France. Having sold monopoly rights over nearly every trade possible and raised taxes on the peasantry to levels that could not easily be sustained, continuance of royal consumption and war making required new sources of revenue. Louis XV's and Louis XVIs ministers attempted to address the situation by increasing the role of royal administrators, the intendents, in the profitable business of enforcing guild and monopoly rights at the expense of the parlements. This was partly successful; Stone(1986)reports that the prices of judicial offices declined on average over the course of the century the crown also attempted to increase the tax base by eliminating some aristocratic privileges. The parlements, not surprisingly, strongly resisted these strategies, and the resulting conflict between king and parlements helped ignite the Revolution A central goal of post-Revolution legal reform, then, was to prevent a return of
12 developments that culminated in the Code Napoléon. The highest courts in pre-Revolutionary France, the Parlements, differed dramatically from the common law courts in England. They were part court, part legislature, and part administrative agency. They decided cases, promulgated regulations, and had partial veto power over royal legislation. As a practical matter, judicial offices were salable and inheritable. The purchase of a judgeship or other royal office automatically conveyed noble status and qualified the purchaser and his descendants for entry into the Parlements (Stone, 1986). The return on the investment was straightforward; in addition to obtaining prestige and various exemptions from taxation that accompanied noble status, judges enforced the rigidly controlled system of guilds and monopolies that characterized Bourbon France (Ekelund and Tollison, 1997). Like the Stuarts in seventeenth century England, the Bourbons faced a fiscal crisis in eighteenth century France. Having sold monopoly rights over nearly every trade possible and raised taxes on the peasantry to levels that could not easily be sustained, continuance of royal consumption and war making required new sources of revenue. Louis XV’s and Louis XVI’s ministers attempted to address the situation by increasing the role of royal administrators, the intendents, in the profitable business of enforcing guild and monopoly rights at the expense of the parlements. This was partly successful; Stone (1986) reports that the prices of judicial offices declined on average over the course of the century. The crown also attempted to increase the tax base by eliminating some aristocratic privileges. The parlements, not surprisingly, strongly resisted these strategies, and the resulting conflict between king and parlements helped ignite the Revolution. A central goal of post-Revolution legal reform, then, was to prevent a return of