Reproduced with permission of 25 Michigan Journal of International Law (Fall 2003) 1-76

Introduction
1. Emerging Global Institutions and the Forces That Will Shape Their Laws
   1. Present and Future World Judicial Regimes
   2. The E.U. and U.S. Experiences as a Guide to the Future of a Global Judicial Regime
   3. Major Aspects of the E.U.-U.S. Impact on a Global Legal Culture
2. Civil Law Thinking in a Global Perspective
   1. The Concept of a "Code"
      1. Objective in Resort to a Code System
      2. Natural Law
      3. Rationalizing the Law
      4. A Code is a Framework
      5. Symbol of Change and Unity
      6. Anticipated Interpretative Method as a Guide to Drafting
   2. Legal Dynamics in the Civil Law System
   3. Courts and Judges
3. Blending Transatlantic Legal Cultures into a Global Judiciary
   1. Approach to Established and Foundational Legislation
   2. Disagreement Over Fundamental Principles
   3. Use of Case Law
   4. Nature of the Judicial Decision Makers
   5. Procedure
   6. Impact of Non-Judicial Institutions
   7. Qualification and Selection of Global Judges
   8. Legal Representation Before Global Tribunals
   Conclusion

INTRODUCTION

World cooperation has generated a variety of supranational organizations, with responsibilities ranging from trade to crimes against humanity.[1] These organizations often include judicial-like tribunals, and these tribunals have and will increasingly create law. Together, they are evolving a global legal culture.[2] This legal culture will initially derive from national legal cultures and yet, over time, will transform national legal cultures. The legal principles that will guide this emerging global legal culture must now be analyzed in order to gain some understanding of the future. This Article offers a framework for thinking about the future development of global legal systems.

The twin pillars of the immediate iteration of this global legal culture will be the civil law and the common law systems. This prediction is not mere transatlantic chauvinism. These legal systems have, for good and bad reasons, migrated around the world. At present, 33.8% of the world's jurisdictions, encompassing 55.6% of the world's population, are based upon the civil law model, or civil law systems mixed with others (indigenous or religious legal ideologies, for example). The common law model, along with systems mixed with it, include 28.24% of the jurisdictions, and 14.68% of the world's population. Hence, combined, civil and common law-based legal cultures cover over 70% of the world's population in over 62% of the jurisdictions.[3] Moreover, the two currently dominant governments are the United States (U.S.) and the European Union [page 2] (E.U.).[4] The U.S., with due respect to its country of origin, England, represents the common law system, albeit its own version. The E.U. has largely adopted civil law concepts, again with due respect to England and Ireland's common law presence in the E.U., and hence, will add strength to consideration of civil law principles. For these reasons, the first steps toward a global legal culture will be dominated by some blending of civil law and common law.

Of course, analysis based on the merger of these systems can only provide a plausible beginning in envisioning the global legal culture because, as recognized below, other customary and indigenous legal cultures, many of which have mixed with the two transatlantic systems, will certainly have increasing impact on the global legal culture. Any prediction of global culture in any regard faces claims of overwhelming diversity, but we have seen an unprecedented merging of cultures in recent times in the face of such cultural diversity. The development of supranational organizations such as the E.U. demonstrates the development of an integrated legal culture in the face of seemingly incompatible and even belligerent histories. In sum, it is plausible to conceive of a global legal culture, even in the face of great diversity, and to forecast that the early stages of that legal culture will borrow a good deal from civil law and common law experiences.

Careful consideration of this emerging legal culture has become an imperative. As a U.S. legal scholar, I feel a particular sense of urgency in that enterprise. Other legal regimes, both supranational and national, have increasing impact on U.S. legal practice and U.S. laws. Yet, few U.S. lawyers [page 3] have more than mere superficial knowledge of other legal systems. While legal systems are generally local and nationalistic, the U.S. legal culture has remained even more isolated than most. On the other hand, lawyers from other legal systems have been studying the U.S. system, often from the inside (obtaining U.S. law degrees and participating in U.S. firms), for generations. To a large extent, the health of the U.S. legal culture and effectiveness of U.S. practitioners depend on how quickly its practitioners and scholars can catch up.

To encourage all, but particularly U.S., lawyers to think about transformation of the law, this Article will envision a global legal regime. The purpose is more reflective than predictive. Nominally, the Article has three parts. The first Part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next Part will outline civil law legal concepts and provide background for common law readers. To further the goal of this Article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal system. The last Part will move to the Article's major goal of setting up a framework for contemplating the basis on which a global legal culture might evolve, to some extent, on the merger of this globalized version of civil law thinking with U.S. common law thinking. Some effort is made to suggest how other major legal cultures may impact on this system but with the recognition that thinking about the interaction of the two major transatlantic systems is sufficiently ambitious for one Article.

Actually, the analysis is a unit presented in three stages: institutions, civil law overview, and then the blending of the civil law and common law legal cultures. The first stage of the analysis looks to the experience and development of four centralizing regimes with global impact: the U.S., Europe, the United Nations (U.N.), and the World Trade Organization (WTO). Since the work is about legal culture the concentration is on the adjudicative institutions of these four organizations. Largely for background, the piece looks to the experience of the U.S. federal courts and the European trade and human rights regimes. The U.S. provides the prediction with 200 years of experience, and Europe provides it with about 50 years. The latter experience is more relevant because it is a recent uniting of a number of national legal cultures. Just as useful to this analysis is the fact that Europe has taken some steps in melding civil law and common law legal cultures. The U.N. engages in human rights creation, promotion and enforcement. Its International Court of Justice (ICJ) presents a plausible and, in fact, working global tribunal for those purposes. It will also provide some experience in unifying a legal culture. Like Europe, the global regime has a trade regime separate from its human rights [page 4] regime. The trade regime now has the WTO to promote and protect trade values. The WTO has its own court-like bodies. Again, the WTO adjudicative apparatus is presented more as a plausible vehicle for developing global law, but it also provides a centralizing experience. The European experience demonstrates that this putative trade regime will ultimately affect almost every aspect of national law, indeed society in general. Like Europe, both the U.N.'s rights tribunal and the WTO's trade tribunal have been and must continue to deal with the tension between civil law and common law ideologies. So, we have plausible nascent world tribunals and we can engage in at least some preliminary thoughts about evolution of a global legal culture recognizing that these tribunals might be the vehicles for carrying it forward.

Now we can begin the job of contemplating what this global legal culture will look like. As stated, about half the world's population is living under some form of civil law system. Thus, it is imperative that common law lawyers and scholars understand some of the basic tenets of a civil law legal system in order to engage in predictions about a global legal culture. Underneath this discussion, and continued into the next stage, is the observation that there are subtle but fundamental ideological differences between civil and common law legal thinking, despite some appearance of convergence between the two great transatlantic systems. Our task also requires sufficient understanding of the civil law model in order to form thoughts about the melding of that model with the common law approach. While these two legal systems have common cultural as well as legal sources, a person from a civil law system will have a different intuitive understanding of law than someone from a common law system. The task here is to gain enough understanding to contemplate how a civil law legal mind will think about an issue on the world stage. Thus, this Part also projects the civil law ideology into the global legal culture in order to move the analysis forward, as well as offer some common understanding of the civil law model.

Finally, we can blend in the common law. A separate discussion of the common law ideology does not seem necessary because I anticipate that most of the readers will come from a common law legal culture, more precisely the U.S. An understanding of the basic tenets of the common law model is presented in the discussion of the interaction of the two models. The primary goal of this stage of the analysis is to identify areas of tension between common law and civil law ideologies. Nonetheless, I suggest potential resolutions of those areas of tension. More ambitiously, I identify certain aspects of these models that might best be adapted to the global legal culture. These suggestions will be set up by the efforts in the second stage to suggest how a given aspect of the civil law system might emerge [page 5] in the global legal culture. Some much more cautious attempts are made to identify aspects of other legal cultures, e.g., Islamic or Asian, that might have impact on the current development of the global legal culture. I recognize that a variety of potential legal ideas may be adapted from other legal cultures, or develop from the creative energies of future generations, but contemplating those is simply too much at this point.

Hopefully, these three analytical stages come together in the readers mind to present a framework for analysis. Some effort is made to engage in divination. It is simply irresistible to do otherwise, but the real goal of this piece is to lay groundwork and encourage thinking about the dimensions of a global legal culture. Although I encourage U.S. lawyers and legal scholars especially to become engaged, all the citizens of the world must be active in the design of the global legal culture.

I. EMERGING GLOBAL INSTITUTIONS AND THE FORCES THAT WILL SHAPE THEIR LAWS

Two parallel nascent global judicial regimes are evolving in a world-wide legal culture: the trade adjudicators and rights adjudicators. Trade adjudicators began to evolve when the WTO's "Dispute Settlement Bodies" (DSB) were created. An ultimate rights adjudicator machine has evolved from the U.N.'s International Court of Justice (ICJ) (sometimes referred to as the "World Court").[5] Mostly, the assertion is that these two already important world tribunals will fill the adjudicative vacuum created by the globalization of society in general.

There are 18 international tribunals that are composed of permanent, independent judges with authority to issue binding decisions on cases between [page 6] two or more parties.[6] Some 96 bodies "in the international system that are charged by States with the job of interpreting international law" might also be seen as part of a global judicial regime.[7] The U.S. participates in a large number of such adjudicative mechanisms.[8] Most of these bodies are relatively new.[9] Still, the WTO dispute settlement machinery and the ICJ seem most likely to gain some dominance among the world's tribunals. Therefore, we can profitably reflect on a global legal system radiating from these two adjudicative regimes.

The Uruguay Round of the General Agreement on Tariffs and Trade ("GATT") established the WTO, embodied in the Agreement Establishing the World Trade Organization [hereinafter, the "WTO Agreement" ]. GATT began in 1947, and has since served as framework for several global free trade negotiations or "rounds." In its current iteration, the WTO has considerable power. The WTO has already given evidence of its potential for reviewing a wide range of national laws and practices.[10] McGinnis and Movsesian, for example, observed that, "The possibility of covert protectionism thus necessarily forces the WTO to address environmental, health, and safety issues."[11] They offer two models for the future of WTO development: the anti-discrimination model and the regulatory model. The former is much less intrusive on national law than the latter. The latter results in the WTO making global social policy regulations to replace national regulations rejected as inconsistent with a world market. These two pro-free trade commentators warned that: "[I]n light of its academic and political support, the regulatory model will likely compete with the antidiscrimination model in shaping the WTO of the future."[12] While both models presage significant shifts in sovereignty, the "regulatory model" suggests a more aggressive imposition of a global social policy on WTO member nations. [page 7]

The growth of economic activity covered by supranational government spurs corresponding growth in formal dispute resolution procedures.[13] Originally, GATT made no provision for formal judicial dispute resolution, but the Uruguay Round resulted in an agreement on dispute settlement procedures.[14] GATT provides that: "The WTO shall administer the Understanding of Rules and Procedures Governing the Settlement of Disputes ... in Annex 2 to this Agreement."[15] The WTO provides for the resolution of disputes among member states in the "Dispute Settlement Understanding" (DSU). DSU provides a panel of experts, but not necessarily legal experts, to hear complaints from nations and decide whether a member's laws violate GATT trade principles.[16] The complaining party may seek compensation if the offending country fails to implement the final decision.[17] The only sanction at present, however, authorizes the unsatisfied complaining country to retaliate against the offending party.

Parallel to trade, but moving more cautiously, is the global rights legal culture and the judicial regimes supporting it. Several specialized rights adjudicative bodies have developed over the years.[18] The general human rights adjudicative institution, which has begun to evolve into a global right enforcing body, is the International Court of Justice. The ICJ's jurisdiction is very broad and it may be engaged to decide any types of "disputes" as defined by the treaty.[19] Statehood is the only necessary qualification to be a party.[20] Although not necessarily confined to rights cases, the ICJ is the prime candidate to become a comprehensive global rights tribunal, and is most likely to evolve into a rights adjudicative regime.[21] [page 8] Clearly, it will and already has begun to develop a universal legal culture for rights.[22]

The ICJ has had a much longer history than the WTO, and has over that time established principles supporting its judicial authority.[23] Franck identified the ICJ's early 90's decision in Libya's case against the U.S. and the U.K. to block extradition of those responsible for the Lockerbie airline bombing with Marbury v. Madison.[24] The U.S. Supreme Court in Marbury v. Madison laid claim to judicial review power in a manner that prevented its claim from being resisted.[25] Similarly, the ICJ established its authority in the Lockerbie case to review the U.N. Security Council, although it avoided direct confrontation with the U.N.'s political institutions.[26] Lockerbie, like Marbury, however, is noteworthy for its assertion of review authority, not its cleverness in avoiding direct institutional confrontation.[27]

On December 21, 1988, a bomb planted on Pan Am flight 103 exploded over Lockerbie, Scotland. Two Libyan intelligence agents were accused. The U.S. and the U.K. indicted these agents and requested extradition. Libya refused. The UN Security Council adopted a resolution urging Libya to comply. Libya then instituted proceedings in the ICJ against the U.S. and U.K. asking the Court to rule that it had complied with [page 9] the relevant international convention, that the U.S. and U.K. had violated that convention and to order the U.S. and U.K. to desist threats against Libya. Three days after the close of oral hearings, the Security Council adopted a resolution ordering members to take coercive action against Libya. The ICJ then ruled that Libya was not entitled to relief. While several judges felt that the Security Council resolution was controlling, others asserted the power to review such resolutions under certain circumstances.[28] Watson summarized the totality of the case: "The decision implies that the international community is moving toward a broader acceptance of judicial review than the framers of the U.N. Charter perhaps envisioned-that subsequent practice under the Charter may have altered its interpretation."[29]

In addition to its constitutional significance, the Lockerbie case, like Marbury, resolved questions of private, individual rights. In Marbury, the plaintiff asserted his right to an office, whereas in Libya, the ICJ considered a right to protection from hostile criminal prosecution. The Lockerbie case had the added constitutional dimension of establishing judicial review of rights disputes among states. Clearly, the foundation for serious judicial review authority in the ICJ has been set. Whether it will be this adjudicative body, or some new one, it is inevitable that some human rights judicial regime will become prominent on the world stage.

In sum, it is easy to make the case that the DSB apparatus in trade and the ICJ in rights will continue to evolve into dominant supranational tribunals. It is equally likely that these two adjudicative systems will generate law increasingly affecting the world's population and impacting on national legal cultures. More mature examples of similar developments, however, are needed to conjure up a vision of the future of this global legal culture.

B. The E.U. and U.S. Experiences as a Guide to the Future of a Global Judicial Regime

To envision the evolution of a global legal culture, we turn to the European and U.S. experiences. Both have developed adjudicative bodies to further trade and human rights goals. U.S. courts have contributed to the constitutional goal to "form a more perfect union." Europeans seek "an ever-closer union," and have established adjudicative bodies that further that goal.[30] Both demonstrate how a cooperative enterprise can result in [page 10] unified trade and rights regimes.[31] Both also demonstrate the symbiotic relationship between the central legal authority and their constituent states. The European and U.S. rights and trade adjudicative bodies then offer some basis for predictions about the evolution of global rights and trade regimes.

Like its European counterparts, the U.S. Supreme Court, along with the lower federal courts, exercise power over both federal and state governmental institutions. Article III vests "judicial power" in the Supreme Court and potential "inferior courts."[32] Judicial power "shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties ...."[33] The U.S. Constitution unites judicial power over the various rights and commerce powers. Hence, U.S. central courts are different from European judicial bodies discussed below in that they combine both trade and rights enforcement.

Movsesian notes the similarities between the emerging WTO dispute settlement authority and the early years of the U.S. Supreme Court:

The U.S. has experienced a continuous tension between federalism and nationalism, and between the courts and political institutions. Still, the power of the federal courts in both rights and trade have grown since its [page 11] founding and provide some justification for predicting similar tension and evolution in world government.

Although U.S. lawyers have some 200 years of historical experience, the recent E.U. experience might better serve to form an understanding of centralization generated by supranational government.[35] For some fifty years, the E.U. has sought a "single market" in Europe.[36] The European experience predicts that the WTO trade regime and, more to the point, its adjudicative institutions will only get stronger.[37] The nominal goal of the E.U. was economic cooperation, but the E.U. has become comprehensive.[38] The E.U.'s well-defined and aggressive legislative structure has played a crucial role in centralization.[39] But it is the role of judicial review of [page 12] national or "member state" actions that provides the relevant experience for predicting the impact of global tribunals.[40]

The judicial authority of the E.U. is delegated to the European Court of Justice (ECJ). The ECJ has jurisdiction to enforce the basic law against both E.U. institutions and member states.[41] E.U. Treaty Article 220 provides simply: "The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed."[42] The Court may void an act of an E.U. institution under Article 231.[43] More to the point here, under E.U. Treaty Article 228, the Court may review actions by the member states to determine if they have "failed to fulfil an obligation" under the treaty.[44] Both the treaties, as the basic laws, and the legislation and regulations implementing them, may be enforced through member actions.[page 13] However, E.U. laws may also have "direct effect," giving them force in private litigation.[45]

Like the U.S. Supreme Court, the ECJ has been extremely activist, and the law it created in the E.U.'s formative stage forms the bedrock of a strong central authority.[46] Bermann summarized its role: "The Court of Justice has thus taken virtually every opportunity that presented itself to enhance the normative supremacy and effectiveness of Community law in the national legal order."[47] Even though it has recently been more cautious, as discussed below, legal doctrines it created are still a major centralizing force in Europe.[48] Alter found: "The European Union's legal system has become the most effective international legal system in existence ...."[49]

The "Solange" series of cases involving conflict between the German Constitutional Court and the ECJ demonstrates the natural movement toward acceptance of supranational judicial power.[50] The first case arose in the late 1960s from a grievance involving a license application by an import-export company, Internationale Handlelsgesellschaft. The German administrative court referred the case to the ECJ on the question of whether [page 14] the E.U. regulation violated German "basic law."[51] The ECJ responded: "[T]he validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure."[52] It argued that even violations of fundamental human rights protected by a national constitution cannot stand against E.U. law.[53] The German Constitutional Court, however, ruled that E.U. law could not take precedence over fundamental rights guaranteed by Germany's basic law.[54] In the second Solange case in 1974, the German Constitutional Court softened its insistence on German sovereignty in the face of E.U. law.[55] Still, the German Court made it clear that it retained the authority to determine whether E.U. law adequately protected rights guaranteed by its constitution.[56] In the third case, based on the new Treaty for European Union, the German Court adopted a new spirit of cooperation and moved closer to acceptance of a European legal order.[57]

The European Court of Human Rights (ECHR) provides experience in the evolution of supranational tribunals dealing with rights.[58] The process begins by an individual alleging a violation of their human rights protected by the European Convention for the Protection of Human Rights and Fundamental Freedom (Convention) [59] to a quasi-judicial tribunal, the European Commission on Human Rights. If negotiations fail, the Commission issues a decision determining whether the state party violated the Convention. The ECHR reviews the evidence and legal arguments de novo, and renders a final decision.[60] The ECHR acquires jurisdiction [page 15] if either the Commission or the defending state party appeals (an individual may not appeal).[61] States undertake in the treaty to abide by the decision, but the legal effect they give the Court's judgment varies considerably. The rate of compliance by states is nonetheless extremely high.[62]

The ECHR's road to effectiveness should guide a global rights tribunal.[63] The first factor that has increased its influence is the Court's willingness to find for individual litigants against their state and its ability to broadcast its performance in that regard. The second factor has been its ability to mobilize its users and consumers, individuals and their lawyers, voluntary associations and nongovernmental organizations.[64] A third crucial factor is demonstrable neutrality.[65]

Nonetheless, the relationship between the ECHR and its member states has made it somewhat less of a force than the ECJ. In recognition of which, the ECJ has been required since the Amsterdam Treaty to apply human rights standards as set out in the Convention to the E.U. institutions and member states.[66] The ECJ has not found itself bound by ECHR decisions, but it refers to them in reaching its own rights-related judgments.[67] In addition to ECHR rulings, the ECJ looks to the constitutions and principles of the member states for human rights standards.[68] In short, the ECJ, despite its trade portfolio, has become an active rights enforcer.

Both the U.S. and the E.U. demonstrate the interaction between a centralizing legal regimes and that of their constituent parts. These experiences are instructive because the global judicial regime will force national legal cultures to deal with a complex matrix in which various existing national and global legal principles interact. The ECJ has served as a battleground for competing national laws of its member states. In AM & S Europe v. Commission, a British company refused to provide certain documents ordered by the Commission, citing legal privilege, an absolute privilege under English common law.[69] E.U. regulations involved in the Commission's [page 16] order made no mention of legal professional privilege, but it did provide detailed provisions on investigation procedures. When the case came to the ECJ, British legal professionals gave support to the company, while the French government, which was not otherwise involved in the case, offered support to the Commission.[70] The French government argued that a member state's criminal law principle could not be extended into administrative law. After hearing multiple arguments, the ECJ ultimately decided to recognize the principle of protection of confidentiality. This is a clear example of the interaction of national laws in the formation of a broadly applicable law developed by supranational judicial bodies.

Slaughter observed both the "vertical" relations and "horizontal" relations among national and supranational courts.[71] That is, supranational tribunals necessarily look to the law of its members, and whether the law that the supranational tribunals devised, ultimately affected the law of its members. The legal development moves "up" and "down" the supranational legal regime, as it has in both the U.S. and the E.U. In addition, however, the practical legal interaction required by participation in a supranational regime leads to borrowing and revision among national legal cultures. Even the U.S. Supreme Court, "regarded by many foreign judges and lawyers as resolutely parochial," has increasingly observed foreign principles.[72] This supranational interaction introduces a new complexity into national law.

Against the U.S. and E.U. experiences as a basis for forming a future global legal culture is the undeniable fact that there is much greater diversity among the world players, even just the substantial players, than faced the U.S. goal of a "more perfect union" or the European goal of "an ever closer union." The WTO encompasses a plethora of trade related legal cultures. Perhaps even more daunting is the emotional and philosophical melange [page 17] of rights thinking that face a global rights judicial regime.[73] Remember, however, that Europeans came together within about a decade of having been killing each other in record numbers with the two of the major combatants forming the founding core. Nor are Europeans so homogeneous.[74] Religious and ethnic wars are a constant in European history. Its legal cultures are far from homogeneous.[75] The U.S. encompasses an even greater ethnic and cultural mix, although few of these can claim dominance over any geographic or political unit, and it found unification an advantage in both trade and rights over time.

On the other hand, considerable commonality exists in the world, at least, the legal world.[76] While the world offers more diversity than either the E.U. or the U.S., their experience predicts that unified judicial regimes will generate a common legal culture in trade and rights.[77] The experiences in the U.S. and Europe provide some confidence that a global judicial regime will be able to adjust in both trade and rights. A global legal culture in both areas is possible, and judicial body or bodies will be effective in confronting and evolving the necessary legal cultures. The key will be identifying foundational principles acceptable to most member nations and their citizens. [page 18]

C. Major Aspects of the E.U. -- U.S. Impact on a Global Legal Culture

As observed above, the global legal culture will be based on an amalgam of the world's legal and governmental cultures. For the foreseeable future, legal development will be dominated by U.S. concepts, representing the common law world and the presidential government model, and the E.U., representing the civil law tradition and the parliamentary government system. This foundation is predictable not only because these two transatlantic authorities, and the legal and governmental cultures they represent, will dominate at least this early stage, but because these cultures have migrated around the world, forming in some ways two fundamental models for legal and governmental institutions. Combined, civil law and common law-based legal cultures cover over 70% of the world's population in over 62% of the jurisdictions.[78] Similarly, most modern governments follow either the presidential or parliamentary models, or some hybrid, and as will be discussed, these governmental models will affect the emerging legal culture. In sum, global legal culture will reflect a merger of civil and common law principles as transmuted in these two legal and governmental cultures.

E.U. legal principles, despite U.K. membership, are founded on the civil law model.[79] As would be expected, it relied largely on the laws of France and Germany.[80] The precursor of German law was the Prussian civil code, the first civil code ever established.[81] The original French code, however, is considered the model for civil law systems.[82] In short, E.U. law is only one step removed from the bedrock of the civil law system and, hence, represents that system on the world stage.

The civil law model has spread throughout the world and now covers over half of the world's population.[83] Its reception by other cultures is well-documented. Generally, it has been a device, as it was in France, for breaking with traditional law and government.[84] However, it is not inherently [page 19] revolutionary, and the German adoption, as discussed below, actually sought to enshrine traditional laws.[85] Each system that has adopted the civil law model has added its own character.[86] Nonetheless, the French version serves as the prototypical model.[87] Its design had the most influence on the E.U. treaties.[88] For that reason, it is used here to explore the global ramifications of an extension of the civil law model.

The common law model has been adopted around the world, in over a quarter of the jurisdictions. This was less due to the result of a reform movement, and probably more because once "the sun never set on the British empire."[89] As Glenn observed:

Perhaps then, the formal adoption of the common law model significantly understates the impact of common law thinking.

The E.U. and U.S. experiences also differ in the allocation of judicial power over trade and rights. The two have followed divergent tracks consistent with the U.S. and Continental European judicial structures. The U.S. rights-enforcing judicial regime was combined with its trade-unification regime, vested in the U.S. Supreme Court and the lower federal courts. Europe has a separate rights-enforcing judicial regime, the ECHR, while the ECJ adjudicates trade issues.[91] The unification of the trade and the rights judicial regimes within a single global tribunal is clearly possible, but the European experience, at present, suggests an opposite outcome. The informal coordination between the European trade adjudicator, the ECJ, and the European rights adjudicator, the ECHR, implies that the two global judicial regimes will increasingly work in tandem. At the very least, they will evolve an increasingly coordinated global [page 20] legal culture with both fundamental components. On the other hand, U.S. lawyers are likely to at least instinctively favor unification, because they are accustomed to a single federal court system handling both. Our reflection does not require a clear commitment to either development.

These two models, and the entire supranational legal enterprise, assume a commitment to liberal democracy. Helfer and Slaughter argue that, "The European experience of supranational adjudication is the experience of two supranational tribunals [the ECJ and ECHR] operating within a community of liberal democracies with strong domestic commitments to the rule of law."[92] They assert that a commitment to liberal democracy is necessary for the commitment to (peaceful) supranational adjudication. At this point, general global commitment to liberal democracy seems plausible. Hence, that condition ought to be fulfilled.

The political models that form the foundation of liberal democracy will also affect the development of a global judicial regime. Of course, the E.U. and U.S. also represent the two dominant types of democratic government: the parliamentary and presidential models. These two governmental models incorporate the courts in quite different ways. That difference will have to be "negotiated" in evolving a global judicial regime. The overarching difference, with the most impact on the courts, is the different sense of proper "separation of powers." The presidential model separates the two political functions, legislative and executive, with the judiciary acting as a coordinate branch. The parliamentary model separates the judiciary from the unified political functions. The U.S. government, of course, is presidential. The E.U. combines parliamentary governments, so that its instincts and its citizens' understanding of government begin with the parliamentary model and its vision of the courts.[93] The separation of the judiciary from social policy decisions in parliamentary government reinforces a similar civil law philosophy. As will be discussed, the judicial role in government in the presidential system, as opposed to the parliamentary system, will be a source of ideological more than structural tension in the global regime. [page 21]

The E.U. and the U.S. are constantly dealing with the tension between nationalism and centralization. Alter summed up the evolution of the European shift in sovereignty:

Still, the E.U., despite pressure for an ever-closer union, has not been immune from the devolution movement. The E.U. has embodied its notion of this conflict in the doctrine of "subsidiarity." The doctrine of subsidiarity expresses a growing sense that the E.U. was detracting from members' authority beyond that intended or wished by its members and their citizens.[95] In short, it expresses a preference for social policy decision-making at the level closest to those who will be affected while still achieving the desired shared goal. Article 5 now expressly provides that:

The E.U. "federalism" controversy is very familiar to U.S. lawyers. In U.S. constitutional law, the two sides in this debate are represented by the "nationalist," advocating a strong federal authority, and "federalist," supporting a considerable retention of authority by the states.[97] This conflict [page 22] has raged since the Constitutional Convention.[98] As in the E.U., unification and localism ebb and flow.[99]

U.S. federalism and E.U. subsidiarity contrast in interesting ways that might shape any predictions about the future of shared authority between the global regime and its national members. Bermann distinguished the two concepts in this way: "U.S. federalism places greater emphasis on the presence of an overall balance of power between the federal government and the states than on respect for any single rule for allocating competences among the different levels of government."[100] U.S. federalism principles may look to an array of justifications for centralized decision-making in a particular area of public policy. The federal government may decide that a solution should be sought at the national level without having to formally justify that choice. Subsidiarity focuses only on "the relative capacities of federal and state government to deal effectively or adequately with the problem or policy at hand."[101] Subsidiarity is a formal restraint in which the central government may take action only if it can demonstrate that it is the best actor; otherwise, the solution to a perceived problem must be left to the local authority. Therefore, E.U. subsidiarity places the burden on the E.U. institutions, including the E.U. Court, to demonstrate that centralization is superior, whereas U.S. federalism allows the political institutions to make the choice. E.U. subsidiarity then both empowers a reviewing court to restrain central authority and restrains the central adjudicative bodies from themselves asserting power. U.S. federalism inhibits judicial interference in centralization of a solution, but only if it attempts to circumvent legitimate political judgments.

All of these E.U.-U.S. governmental experiences assist in developing a framework for envisioning the future of a global legal culture. They show the process toward some degree of centralization, and the legal relationships between central authorities and their sovereign units. They show the role likely played by the adjudicating tribunals of the central authority, and the tensions that role creates. These sources help us envision similar evolution in global government and the role of global tribunals. We move then to laying the foundation for contemplating that future. [page 23]

II. CIVIL LAW THINKING IN A GLOBAL PERSPECTIVE

This Part has two interrelated goals. First, I expect that most of the readers of this work will have only limited knowledge of basic civil law principles. Thus, this section tries to provide an overview of civil law thinking. Second, in order to do so in a way that moves the inquiry forward, it also attempts to identify some major issues that might arise as those concepts are incorporate into a global legal culture. These observations anticipate the discussion in Part III, in which the civil law meets common law thinking on the world's legal stage. While a common law scholar might seem a curious person to attempt these objectives, I might claim both an advantage in explaining civil law concepts to common law readers and in anticipating outsiders' reaction to those concepts as they might be brought forward into the global arena.

A. The Concept of a "Code"

It is well recognized that the keystone of the civil law system is "the code." The concept of the code, however, is much more ideological than common lawyers recognize. In approaching the civil law, common lawyers must dismiss the popular distinction that civil law is statutory law as opposed to judge-made common law. As Merryman in his famous guide to the civil law for U.S. lawyers wrote:

The first step, then, is to explore the ideology expressed by the code oriented strategy.

The need for this understanding is particularly acute because supranational legal principles will necessarily evolve from multinational agreements. Civil lawyers will approach both the drafting and interpretation of those basic agreements as they might a code.[103] The E.U. treaties support [page 24] this conclusion.[104] Vranken notes that, "Similarities exist between the 1957 Treaty of Rome ... and the 19th century codes, in particular the French Code Civil. The Treaty is a framework treaty (traité cadre): it lays down a grand design only. Yet somehow the treaty can make the same claim to comprehensiveness as a civil code."[105] This similarity is far from a surprise because civil law drafters instinctively conceived of their mission as creating a European code. More to the point, one can expect civil lawyers to seek to fashion global agreements with the same instincts, and they will view the final product as if it were a code. What does this mean?

1. Objective in Resort to a Code System

The civil law ideology grew out of an experience that taught that courts might be the most dangerous branch, and certainly not inherently the least dangerous.[106] This principle belief began with the French ancien regime, in which the "Parlements," or regional courts, were oppressive and corrupt instruments of bourgeois authority, and frequently served as an instrument for royal repression.[107] Constraining judicial abuses was the goal of the code, and that goal pervades through civil law thinking. It is how the courts are constrained, however, that is the key to understanding the civil law ideology.

Because of this experience, the separation of powers between majoritarian government, the legislative process, and the judicial function is a fundamental objective of the code.[108] While recognizing three functions, law making, law implementing, and law interpreting, it strives to insulate the legislative (law making) function from the judicial.[109] This governmental objective conforms to the parliamentary model in which civil law systems reside. That model combines the executive and legislative in that the [page 25] legislative branch forms the executive leadership and is ultimately controlled by it. Thus, both the civil law model and the parliamentary model seek protection of democratic law making and implementing functions from an elite judiciary.

In their seminal comparative law explanation, David and Brierley attribute this division in some degree to all the systems in the entire "Romano-Germanic family." The tendency is both traditional and natural:

Whatever the contribution of the courts to the evolution of the law, it certainly differs, therefore, from that of the legislators in countries of the Romano-Germanic family. Legislators, who nowadays are called upon to establish the framework of the legal order, do so by formulating commands and creating rules of law. Very rarely are courts authorised to use this method .... save a few possible exceptions which, while undoubtedly interesting, leave the principle intact nevertheless.[110]

Thus, the civil law actors adhere to this separation of functions, but the impact on the legal culture is subtle.

This parliamentary, civil law vision of separation of powers is likely to guide the global judiciary. First, civil law nations dominate the global arena, and civil law public law principles do not seem to give way to common law principles.[111] Second, most nations have some form of parliamentary system with a strong legislative concept. Third, and perhaps more important, the global participants will not trust an activist and free wheeling judiciary.

Interestingly, despite the fact that most E.U. members have a civil law legal culture, and all have a parliamentary form of government (although some have a "hybrid"), the ECJ has been quite activist. Yet, it is unlikely that [page 26] such activism will be acceptable on the global stage. The WTO Appellate Body's decision in EC-Measures Affecting Livestock and Meat Products (Hormones),[112] illustrates this concern. In EC-Hormones, the Appellate Body admonished the Panel for imposing procedures on the parties that did not have a foundation in the treaty's text. It was very concerned over the Panel's lack of respect for an agreement that WTO Members consented to as a framework for guidance. Thus, the tradition of civil law coupled with the tendency of global institutions to reject judicial activism indicates the separation of legislative and judicial functions will likely persist into any global legal system.

2. Natural Law

The place of natural law is historically significant, and hence is important in understanding the instincts of civil law philosophy. Zweigert and Kötz explained it as such:

Thus, civil law is founded on what is called "secular natural law."[114]

Understanding the civil law ideology requires the recognition that somewhere in at least the subconscious of the civil law is the ghost of natural law. Yet, modern jurisprudence worldwide has much less respect for the concept of natural law, even as a legitimate evolutionary root. Even civilians have questioned the propriety of founding a legal system in the notion of natural law, although perhaps they cannot totally distance themselves from some visceral imperative.[115] Nonetheless, whatever they now believe about universal principles, civil law is imbued with natural law reasoning.

The civil law's natural law orientation will affect its impact on the global stage, where other cultures will cling to their own set of universal principles.[116] [page 27] It will be hard to negotiate these differences in global tribunals because they are based on cultural experience and tradition. Thus, the more civilians seem attached to a natural law the more controversy will revolve around fundamental principles. It is well accepted that negotiation is most likely to breakdown when fundamental principles are at stake. In short, disagreement over the very existence of natural law can be expected to be one source of tension if the civil law model is adopted on a global level.

Indeed, even the notion of legal secularism will be questioned in many legal cultures. What is known as the jus commune, the sources of civil law, includes canon, i.e. catholic, law along with Roman and local law.[117] Although to a large extent the code approach was intended to free the legal culture from religious principles, the resulting code was imbued with them. It will be important for participants to recognize the potential religious undertones of any disagreements between applying the principles of civil law and other legal cultures.

3. Rationalizing the Law

The philosophical context from which the civil code emerges justified a scientific approach to law making and development. Indeed, Merryman observed that, "[Civil law scholars] deliberately and conscientiously sought to emulate natural scientists."[118] The codes are the product of the "Age of Reason." "The civil codes are premised on the belief that life is not full of random events, but rather that there is order."[119] Therefore, the civil law instinctively perceives the law as a subject of scientific study and formulation.[120] Starting with that conception of the law, it seemed quite reasonable that a small body of experts, called "jurists," should lay the foundation of the legal culture.[121]

A substantial difference exists, however, between the French approach and the German approach.[122] The French code was revolutionary in that it sought to wipe away prior law and establish a new legal order; in contrast, the German code sought to adopt fundamental principles by scientific study of the historical context of existing German law. The French code writers thus set out to discover, though science, a set of "best principles," [page 28] whereas the German "historical school" opposed a code devised by reasoning due to philosophical principles. Nonetheless, the two civil law models share a desire for rationality and a scientific approach to the law.

Just as it is not fruitful today to assert universal principles of law, the world may also be skeptical of a neutral, scientific approach to its legal system.[123] First, agreement on best principles is extremely difficult. While the search might be for some sort of principled consensus, that consensus will result from a "negotiation" of legal traditions, rather than a scientific distillation of immutable axioms. Second, much of the science in the civil law system was historical, the derivation of law from ancient "wise" cultures. History and social traditions are not universal, and other, non-transatlantic societies will look to their own "wise" cultures. Moreover, the "wise" cultures have lost much of their gloss, particularly the ones upon which the code is founded.

Still, the objective rationality of civil law may find acceptance in the global legal culture. Legal consensus cannot be developed from a "town meeting," even of representatives of legal cultures. Rather, the global "legislation" will necessarily be the work of a body of persons charged with developing its framework. Many of these individuals will be jurists, instinctively trying to find and incorporate the "best" ideas. The structured adaptation and creativity of the civil law system may be compatible with the evolution of the law in the global arena.

4. A Code is a Framework

Whatever its philosophical roots may be, the overarching strategy of any code is to create a framework for society. The framework seeks the smallest possible number of elements; it seeks what the civil law jurist Jhering called an "economy of juristic concepts."[124] The degree to which this strategy is adhered to varies among codes. Nonetheless, the object of any code is to provide this foundational framework for the legal culture.[125] It is a launching pad from which judicial decisions and legislation spring. It seeks at once to be concise, straightforward, and universal.[126]

Given the philosophical difference, it is not surprising that the French and German code differ in this respect. The French code was to be so simple [page 29] and straightforward that lawyers would be unnecessary. In contrast, its precursor, the Prussian Ladrecht of 1794, attempted to be so detailed as to govern every possible situation. Even after the failure of this attempt, the drafters of the German code sought a much more detailed and technical document. Its code strategy incorporated a role for legal professionals. Still, the two code models aim at a framework around which the total legal system could be built.

5. Symbol of Change and Unity

Despite their different philosophies, the German and French models share fundamental code-related goals that have popularized them around the world.[127] They incorporate a sharp separation of powers doctrine in which the legislature makes the law and judges are prevented from doing so. Thus, codes represent an affirmation of majoritarian government. Also, since they are necessarily the product of nationalism, creating one law for an entire nation, codes performed (and continue to perform) a unifying function. It may be these characteristics that recommend the civil model to emerging states around the world. For these people, the code offers tangible commitment to democratic government, rather than government run by elites, and the expression of nationhood.

These characteristics make civil law ideology particularly attractive to the global legal culture. Globalization will instinctively drive toward unification, and a code is an effective technique for centralization. The code-like use of the treaties forming the E.U. demonstrates this unifying nature.[128] Multinational agreements resembling a generalized, or French-style, code, will no doubt play the role of the "code" in a more global context.[129]

6. Anticipated Interpretative Method as a Guide to Drafting

The civil law system has developed sophisticated interpretative methods, and the anticipation of application of these techniques will affect the drafting instincts of civil law system participants. For one thing, the civilian approach to language is consistent with the general international law commitment to text.[130] The WTO Appellate Body decision in India [page 30] -- Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products demonstrates this instinct.[131] In India -- Quantitative Restrictions, the Appellate Body expends much effort in interpreting the correct meaning of "thereupon." This illustrates the supranational organization's concern with remaining bound to the treaty text, as reflected in their judiciary's decisions. Thus, civil law participants, at least, will embellish any global agreements and implementing multinational governments in much the same way as the codes have been embellished.

The civil law incorporates a hierarchy of legislation. In civil law countries, there are both code provisions and statutes, and each has its own style.[132] Statutes tend to cover very specific subjects, and are drafted very specifically. Merryman describes these "microsystems" that revolve around the Code.[133] These microsystems are created by decidedly political legislative action, not the work of an impartial team of legal experts. Within the microsystem are the executive actions and decrees. Such administrative actions are important to the implementation of a code framework.[134] The code provisions tend to be more general in nature, and more stable than these embellishments. "Thus new legislation should employ the concepts and institutions and follow the organization established by the scholars and embodied in earlier systematic legislation."[135]

A civilian will work with global legislation as frameworks in the nature of a code. Even among civil law nations, however, the same provision has been given different meaning, evidencing, even among systems that show initial agreement, the pull of forces such as customary law and national experience.[136] Thus, it is important to remember that civilians will bring to the global arena, not agreement on specifics, but a common legal philosophy, an ideology that will deeply affect the global legal culture. Civil law-trained global judges may resist efforts to use sources other than the language of agreements to establish general principles. They may accept reference to other sources, including other judicial opinions, [page 31] but that acceptance must be carefully understood in the civil law context.

In a code system, judicial interpretations are overshadowed by the interpretations of the scholars and academic lawyers called "jurists." Scholars are a crucial source of interpretation.[137] Lawson stated bluntly that, "Civil law is inconceivable without the jurist."[138] Civilians will naturally assume that teams of experts will draft any global legal framework, and they will expect jurists to contribute significantly to future interpretation of that framework.[139] However, global judges themselves will rarely reflect the civil law model, and the civil law's reliance on academic decision makers will be met by resistance among world participants. The extent to which learned individuals receive deference will be a point of tension.

B. Legal Dynamics in the Civil Law System

A perception of the civil law system is that code interpretation is prohibited, or at least closely constrained. True, at first, the French code drafting project thought to prohibit judicial interpretation and leave the legislature, as the democratic institution, to be the sole authority to evolve law from the code. But change and interpretation are inevitable, and code aficionados have no illusions that it could be otherwise.[140] Napoleon, himself, lamented shortly after the Code Civil came into effect: "The Code had hardly appeared when it was followed almost immediately, and as a supplement, by commentaries, explanations, developments, interpretations, and what not ...."[141] Indeed, the original French code itself recognized the need for interpretation.[142] "Consequently there is general agreement in civil law jurisdictions that judges do have the power to interpret evolutively."[143] Still, as Zweigert and Puttfarken observed, "Conspicuously lacking in civil law jurisprudence is a methodology of the judicial development of the law, a methodology which would analyze, [page 32] rationalize ... and systematize the specific role of the judge in the process of finding and making law."[144] The nature of the interpretative and evolutionary process serves as one of the premiere distinguishing characteristics of a code system.

It starts with a literal or structured approach. This expresses an atmosphere or attitude: a real commitment to language, often called a "grammatical" approach.[145] The courts pay more than lip service to the idea that if the language is clear, they must apply that language. Even when the statute is ambiguous, a judge must stick to the statute. Of course, the language does not often compel an outcome. Indeed, a code based upon the French system, particularly, is rarely so specific. Under those circumstances, the court is to engage in "logical interpretation." De Cruz described the approach in this way: "If application of the grammatical meaning approach suggests more than one possible interpretation, the text may be construed in accordance with the 'logical interpretation' approach."[146] Applying the logical interpretation approach, a judge may construe the legislative provision not just on its stated terms, but with the context of the entire body of rules comprising the legal system, derived from the same statute, in other laws or from recognized general principles of law.[147]

The overarching goal of the civil law system is legal certainty.[148] In a way, the German system serves this goal better because its code is more precise than the French code. Yet the French system may be moving in that direction.[149] The balance between predictability and the process of change in the civil law system is important to understanding the operation of that system.

Certainty is guaranteed by the use of clear concepts. Clear concepts and principles provide elements of innumerable combinations designed to fit any particular situation.[150] The concepts move decision making ahead as [page 33] in chess, according to clear and definite rules.[151] Civil law aims for stability of the platform or framework, but not total prohibition of change. As Merryman observed: "[Certainty] is an abstract legal value. Like a queen in chess, it can move in any direction."[152]

The drive for certainty emphasizes systemic values, which concentrate on definitions and classifications. Categorization may be seen as a kind of applied formalism.[153] But unlike an extreme formalism which ultimately generates strict rules, categorization disciplines without inhibiting development. Indeed, categorization can be extremely creative.[154] Developing the law to serve society is an important aspect of the civil law system, more important in theory than individual justice.[155] It attempts, however, to direct the mental process by which one evaluates or evolves ideas, and its mental discipline has a natural tendency towards ordering.

Categorization structures experience and experimentation. The French jurist Tunc sought to explain this aspect of the civil law system:

Indeed, categorization demands the reworking of classification with each new "sample" dispute resolution, which adds to the experience of law. Categorization recognizes that theory without application is empty and that application without order creates systemic chaos. Experience and theory are necessary partners in any progressive evolution of both practice and ideas. The categorization process does not slowly withdraw issues from reality as the rules become more wooden with use, a circumstance one might see with formalism.[157] Rather, categorization orders a creative decision-making process. [page 34]

Categorization is dynamic as well as creative. It is quite useful for adapting to new circumstances and new social problems. U.S. jurist Duncan Kennedy described the reciprocal nature of its developmental strategy, whereby practice influences the system of premises and the system of premises influences practice.[158] As to its operational strategy, he explained that, "The basic mode of this influence of theory on results is that the ordering of myriad practices into a systematization occurs through simplifying and generalizing categories, abstractions that become the tools available when the practitioner (judge or advocate) approaches a new problem."[159] Categorization is a decisional tool that can incorporate all relevant values in the face of new circumstances. The dynamic and adaptive, yet necessarily applied, nature of categorization form out of the bounded creativity of the civil law model.

The subtlety of this stable but dynamic approach to language may baffle non-civil lawyers on the global stage.[160] Civil law participants in the global arena will seek to create and perceive the language as creating concepts. In individual application, they will expect the concepts in international agreements to remain constant, applied in a principled way dictated by that language.[161] Thus, tension over the manipulation of language, not disagreement over its flexibility, is likely between civilians and non-civilians. [page 35]

Civilians refer to the "teleological approach," interpretation according to adaptations of rapidly changing social or economic conditions.[162] The theory is that every code provision is considered a thread in one whole cloth. The significance of this strategy is that where there is an ambiguity in a code provision, the first place one looks is at other code provisions. Thus, judges in the civil law tradition can sometimes "read into" a code provision something, which is taken from another provision, which might, on its face, not seem terribly relevant. The result may not, however, be directly contrary to a conclusion derived directly from a grammatical or logical interpretation. It does not preclude contradiction by reference to legislative history, but original intent and legislative history are considered only after there is a determination that no answer can be found in the code. As Kötz explained: "As regards the civil law, it is an overstatement to say that a code is always completely self-contained and therefore excludes all reference to any source of law other than itself."[163] Global tribunals may also follow the teleological approach.[164]

The idea of individual interpretation in the civil law system is not so much to decide individual disputes but to anticipate broader solutions.[165] "[A]t no time can individual cases be allowed to blur the broader picture."[166] The code provides a stable platform from which to make these leaps into the future. This grants the courts a broad sort of discretion. Civil law decisions are expected to anticipate the future itself outside the context of the individual controversy. Predictability of legal implications for others in the same position is more important than the implications of the result for a particular individual, even if the rule is harsh in a specific case.[167] Within this design is accommodation for equity in individual application. Consistent with the overarching strategy, the power to consider individual fairness must be delegated, although sometimes the delegation may be implicit.[168] Individual fairness must give way to legal certainty.[169] [page 36] Accordingly, civil lawyers will expect supranational tribunals to individualize according to these priorities.

C. Courts and Judges

Civil law courts tend to be specialized and hierarchical.[170] The judges direct their proceedings. Their structure expresses a commitment to expertise and intellectualization. Thus, the civil law depends on the intellectual capacity of its judges. German judges, in particular, are likely to seek learnedness in their opinions.[171]

Civil law judges are part of the civil service.[172] Judges enter a career of judging and advance through the judicial hierarchy.[173] They are educated and trained to be judges. In particular, their education and training equips them to work with language and to engage in the rational and scientific finding of the law. They then gain experience as judges. The judicial hierarchy allows judicial authorities considerable control over lower level judges.[174] Opinions are anonymous and collegial.[175] They rarely become known outside the legal profession, and even there, they do not attain a special status.[176] Their training and experience creates an elite, if anonymous, corps of adjudicators.

The same elite civil servants are not assured in the global judicial regime. Global judges will come forward from national regimes. The international community will hope that judges will be experienced, professional judges, but that is not now certain. Surely, they will not always have the training and experience that may be necessary to make the system work as a civil law system.

Civil law decision-making compels its own kind of fact-finding and record. Civil law judicial decision-making is supported by the "inquisitorial" procedures. The basic strategy of this procedural model is judicial control, in contrast to the "adversary" system, which bestows control upon the lawyers. At first blush, a judge-controlled process seems inconsistent with the basic distrust of courts. However, given the demands on civil law judges, they have a justifiable need for a record adequate to perform [page 37] those functions and for a broad range of advice, including expert legal advice.

The ECJ provides a supranational adaptation of the judicial management and expertise orientation of the civil law process. After the pleading stage, the parties' control virtually ends, and the court takes over. One of the judges is assigned the case and serves as a "judge-rapporteur," responsible for building the record. The rapporteur's report will serve as the basis for a decision. An independent judicial officer, the "Advocate General," then considers the case. The Advocate General is part of the court, and prepares an opinion to "assist" the Court.[177] Although the extent to which the court adopts the Advocate General's opinion may vary, it is invariably of extreme importance.[178] As Arnull observed: "[M]ost students of the Court would probably say that it is fairly unusual-although by no means unheard of-for the Court to depart from the Opinion of its Advocate General and there are reasons for believing that, whether or not an Opinion is followed, the judges find it helpful."[179]

The global tribunals might do well to borrow both the preparatory judge and the Advocate General function from the ECJ. The preparatory judges, as they do in the civil law process, balance out the inequality of representation and assure that the court has the record it needs. The ECJ-style Advocate General would provide expert support for global judges of varying training and ability. Such a permanent and impartial advisor to a global tribunal could also assure some certainty and uniformity among tribunals representing diverse judicial characteristics. [page 38] [180]

In the civil law system, appellate courts review lower court judgments de novo.[181] Civil lawyers will expect global review-level tribunals to engage in the same type of review. However, global judges may fall short of the civil law's juridical ideal. These tribunals will be more political, and their disagreement with lower tribunals will be suspect.[182] A pattern of disagreement will certainly affect the perception of any emerging global review authority.

The civil law uses specialized tribunals. They serve the purpose of promoting the civil law's desire for expertise and the societal role of courts. However, the specialized tribunals also grew out of the need for court-like bodies separate from the "judiciary." Thus, certain categories of litigation, for example administrative disputes, proceeded through a special court system. Judges in these courts were not selected according to the strict professional standards of the judiciary, permitting selection for subject-matter expertise and social policy perspective. More importantly, these courts might take on functions that appear legislative.[183] Much the same development may be seen in the U.S., but perhaps for different reasons. Currently, many federal tribunals are not part of the judiciary as created by Article III of the U.S. Constitution.[184]

III. BLENDING TRANSATLANTIC LEGAL CULTURES INTO A GLOBAL JUDICIARY

Having laid out some of the basic notions of the civil law model and suggested how those notions might play out in global perspective, the next step is to think about how the common law and civil law legal cultures may interact in the global arena.[185] Some observe a convergence of these two systems.[186] Surface similarities should not obscure the fundamental [page 39] ideological difference in the way each system conceptualizes the law. Reimann recently observed:

Because the differences are so deep seated, surface convergence is not likely to relieve the basic tension between the two legal cultures as they vie for place in the global arena.

The different fundamental principles and instincts lead lawyers and scholars to approach legal questions quite differently. Lawyers and officials from the two regimes approach drafting and interpretation of the framework documents in quite distinct ways. When a civil lawyer contests against, or works with, a common lawyer, the two will have a fundamentally different native sense of "law." Thus, it is useful to now turn to the risky prediction of how the two regimes will be accommodated in a global legal system. Again for emphasis, this framework anticipates the contribution of other legal systems but finds a civil law and common law base a very useful place to start.

A. Approach to Established and Foundational Legislation

The core distinction between civil law and common law is their approach to authoritative documents. Because of this difference, each will expect founding agreements, global legislation, and pronouncements from supranational governments to be drafted and interpreted with their own approach in mind.[188] Therefore, the merger will generate tension and perhaps misunderstanding in both drafting and interpretative principles.

The simplistic distinction that the civil law follows statutes whereas the common law leaves judges considerable freedom is belied by history. Statutory interpretation has always been crucial to common law legal reasoning.[189] Indeed, it seems that Justice Coke created a weak commitment to statutory interpretation and the exultation of judicial opinion. That view never really dominated English legal thought. Indeed, [page 40] Bonham's case,[190] which established the principle of judicial dominance, is remarkable in fact as an exception to the dominance of statutory language, an exception that did not hold over time.[191] Even Coke recognized that courts must follow the statute and exercise discretion only when the language fails to answer a particular case.[192] This approach has not been completely lost in the modern common law practice.[193] Undeniably, however, U.S. jurisprudence has accepted a cavalier judicial approach to legislative language.

In both systems, judges are bound in some degree by the language of authoritative documents, and must engage in interpretation. As discussed above, the civil law is dominated by scholars and academic lawyers, whereas the common law is dominated by practitioners turned judges. Thus, another area of tension is the relative weight of judicial interpretation versus that of jurists. Merryman, for example, claims that the common law is the law of judges and the civil law is the law of law professors.[194] That is, judges who are the pinnacle of the law-development process dominates the common law, whereas the civil law exults jurists and scholarly development. Islamic law is also built on the work of scholars.[195] Another one billion or so members of the world community are likely to place special value on scholarly interpretation.

Nonetheless, it is the nature of the foundational written law, the concept of a "code," and the ideology derived from a system founded on a written base, that distinguishes the two legal cultures.[196] The nature of the language [page 41] itself is likely to be different. The code, as discussed above, is a framework, creating at once a stable platform and a guide to adaptation. Because experts draft the code, it constitutes an effort to rationalize the basic laws (thereby channeling statutory and administrative laws). The code concept requires faithfulness to language and a commitment to find the law in authoritative documents.

It is then not so much the code itself but the legal philosophy, which the code instills in the civil law mind that separates the two legal cultures. Statutory language for modern common law, at least as manifest in the U.S., is organic, a living creature. The U.S. approach easily recognizes the need for judicial adaptation. It has not committed itself to a stable approach to statutory interpretation. Judicial authority in the civil system, as discussed above, is limited. In other words, the strong judicial role of the common law system permits "soft" statutory language, where the weak civil judiciary requires "hard" language.[197]

Civil law-like ideological constraints are evident in international tribunals. A somewhat extreme example can be observed when an international tribunal observes a non liquet and does not resolve the claims in a case. A non liquet occurs when a judicial body decides not to decide a case because there is a "gap" in the law.[198] The tribunal, in such a case, is unwilling to go beyond textual language to decide disputes not foreseen by treaty and statutory creators. GATT and WTO examples of non liquets are the unadopted panel report in EEC Wheat Flour Export Subsidies and the Coconuts case.[199] This approach to international adjudication is also seen in ICJ jurisprudence. In South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.),[200] the ICJ refused to decide a case because of the lack [page 42] of an "objective rule." It reasoned that any decision would force it to go beyond its judicial mandate.[201]

In order to predict how the two interpretative tendencies will interact, one must begin by identifying the points of potential tension in the way each treats statutory language. As discussed above, civil law lawyers see interpretation as a scientific exercise.[202] So the real working difference between the two approaches to interpretation is the more structured approach of the civil law legal culture. Civil law interpretation proceeds according to rules. Commentators aptly analogize the core concept to chess.[203] Civil law judges move, but according to well established rules, whereas common law judges often see statutory language as providing a mere springboard from which they create the law for a specific case. Language in civil law interpretation provides a stable platform, a framework, from which the civil law judge must work.[204] This sense of stability may unsettle U.S. lawyers, and they may not readily understand the moves civil law insists on, especially since U.S. jurisprudence has become imbued with realism and post-modernism.[205] While judges in each system must apply clear language, a civil law judge actually takes their duty to find the meaning of the language seriously, to honestly engage in interpretation.[206] That approach is often termed "grammatical," and is, in reality, quite different from "interpretation" engaged in by U.S. judges.[207] [page 43]

A U.S. jurist might characterize the difference in the two visions of judicial conduct as between formalism and realism.[208] A U.S. lawyer views the civil law approach as formalistic, even though such a characterization fails to capture the subtleties of the civil law approach. De Cruz has observed, for example, that the French approach is formalistic, the U.S. approach is instrumental, and English law lies somewhere in between.[209] In U.S. jurisprudence, realism with respect to what judges do has been converted into what they ought to do. Its philosophy sets the judiciary free not just to interpret, but to "legislate," restrained only by the context of the individual dispute. U.S. interpretation contemplates judges balancing the interests embodied in the legislation rather than merely finding meaning in the language.[210] It is not in its insistence on the binding force of language, but on the style of judicial development that civil law will contest with common law.

As discussed previously in Section IIA, the scientific method supporting the civil law approach parallels what in U.S. jurisprudence is termed "categorization."[211] Categorization has been an important, and often dominant, strategy in the U.S.[212] Yet, categorization is often criticized by modern U.S. commentators as insensitive and static. As discussed, both the civil law system and categorization are adaptive and creative, but their progressive principles require a special kind of manipulation. Categorization creates a structured creativity in the law so that logic and experience move the law according to certain established concepts.

In modern U.S. jurisprudence, the categorization approach often gives way to balancing. "Balancing requires the explicit articulation and comparison of rights or structural provisions, modes of infringement, and government interests."[213] One might argue that balancing is inherently consonant [page 44] with common law in much the same way categorization is with the civil law.[214] Balancing presents some methodological opportunities that suggest it to the common law mind. Balancing offers an opportunity for a judge to tailor the law to a particular litigation; it seems less abstract and more sensitive to individual circumstances. On the other hand, balancing has been criticized as allowing judicial law making based on personal prejudice and preference.[215] A corrupt resort to the balancing strategy can be a tool for deceit and special interest promotion, just as honest employment illuminates sensitive comparisons of accepted values.[216] The freedom won through balancing, at its best, assists the judge in doing individual justice, but this freedom also necessarily creates the opportunity for abuse. Sullivan, for example, summarizes the view that categorization reduces the potential of the decision maker to "factor[] the parties' particular attractive or unattractive qualities into the decision making calculus."[217]

The adaptability of balancing to judge-dominated policymaking is another aspect of balancing that fits the modern U.S. instinct for judicial activism but may offend civil law instincts. Balancing permits judges to justify policymaking based upon on the circumstances of the individual case before them. Yet, the very focus on an individual case recommends against balancing for broad policymaking. Through balancing, judicial policymaking may be opportunistic in disregarding and modifying past approaches, but they are also limited in their policy choices by the context of the case presented. On the other hand, as discussed in Part II, civil judges may not allow individual disputes to cloud their vision of societal values. In short, civil lawyers may find that balancing fails policymaking because of its tendency to narrow perspective as well as its weakness in incorporating past learning.

Balancing, however, is not a necessary aspect of the common law approach to interpretation. Not only is judicial resort to balancing a fairly new development in U.S. judicial justification, but U.S. courts still engage in categorization. Balancing was not prevalent in Supreme Court opinions until [page 45] the second quarter of 20th century.[218] Although the modern U.S. legal mind seems most comfortable with justifications based on balancing, judges today are just as apt to rely on categorization.[219] As Sheppard observed: "The Court balances, and the Court categorizes. Not only are both methods compatible, but both are now sufficiently entrenched as judicial tools of adjudication that the Court is unlikely to rewrite so much precedent merely because of a mode of interpretation."[220] Today, however, categorization is seen as doctrinaire and stifling, i.e. inherently conservative, and hence balancing has come to be seen as a progressive approach to law.[221]

A balancing approach, used in a global context with diverse cultures, would be particularly difficult to implement. It would raise the specter of all sorts of cultural, racial, regional and ethnic conflicts. Balancing necessarily sets values, often fundamental, against each other. Balancing will thus generate tension independent of the level of freedom granted to judges. Even in the context of U.S. culture, some doubt that values are sufficiently commensurate to validate the use of a balancing approach in many cases.[222] For instance, it may be deceptive to attempt to denominate rights [page 46] in a single currency and weigh their relative worth.[223] The often-subconscious realization that the interests involved are not actually comparable leads courts to camouflage the "intuitive" nature of their decisions with balancing justifications.[224] Even if Schauer is correct in arguing that it may be preferable to base rights decisions on imperfect commensurability in values accepted in U.S. culture, the complexity of commensurability in the global community still dictates against judicial balancing as an interpretative device.[225]

In sum, both ideologies accommodate growth and adjustment in the treatment of authoritative documents. General principles of international law might support both. Whereas the Vienna Convention [on Treaties] requires a strong commitment first to text, and then its history, it also recognizes modification by "subsequent practice.[226] Yet, the more structured civil law system's approach to adaptation and creativity may be more defensible in the global arena.

B. Disagreement Over Fundamental Principles

Fundamental principles become important to interpretation under any legal regime. While civil law and common law legal cultures have some basic disagreements regarding interpretation, they share many fundamental principles. These philosophies and principles are not shared throughout the global community.[227] Disagreements at fundamental levels are very difficult to negotiate and compromise.[228] Thus, in the global arena, legal notions [page 47] derived from fundamental principles may be the focus of the most difficult legal conflicts to resolve.

The underlying aspect of a natural law foundation inherent in the civil code, as noted in the prior section, might be difficult for other cultures to accept. Even U.S. lawyers, who might share some of the civil law's fundamental principles, might not accept their natural law source. Pound observed that both the civil and common law moved away from natural law in the 19th century.[229] The two cultures diverge as to the implications of that movement. U.S. legal philosophy has little regard, even disdain, for natural law, whereas, as discussed in the prior part, natural law is still respected in the civil law world at least as one source of codification. Arguments with a natural law feel in the global context might have more currency for civilians than common lawyers.[230]

Similarly, the evolution of the civil law relied on secular natural law. Many of the world's legal systems, which include a large portion of the world's population, have strong, if not dominant, religious aspects.[231] Legal systems that are consciously religious, such as those with Islamic and Hindu elements, will resist even the secularization goal. More to the point, they can be expected to inject religious elements into the global legal dialogue.

On the other hand, the sources of fundamental principles in transatlantic legal culture are in fact religious. The religious base of transatlantic law will be a source of tension in the global arena. Canon, or Catholic, law is one of the three jus commune, or sources of civil law.[232] Although the code attempted to secularize the law, its religious genesis cannot be ignored. A look at any of its founding documents reveals that basic U.S. principles also have a religious base. Like the civil law, the U.S. legal culture has attempted to secularize these principles, but their origins cannot be denied. Those from non-Christian legal cultures will find the inherent [page 48] validity of these principles debatable. Indeed, the religious background of the principles by itself will make them suspect. Many will prefer their own religiously-based legal principles. Again, these types of disagreements are particularly difficult to work out.

International agreements, rather than judicial decisions, will mediate many of these fundamental conflicts. To the extent that agreements establishing supranational governments are constitutional in nature, they will address some fundamental principles.[233] Their constitutional stature will take issues off the table and hence dictate fundamental values to future generations.[234] Thus, tension will grow between the vision of the founding generation and that of any current generation. Moreover, many non-transatlantic participants will not be able to affect the basic agreements. Those unable to participate will resent particularly the embedding of fundamental principles in basic documents of supranational governments.

On the other hand, international participants finesse rather than confront many of these issues in the basic agreements. The very emotional explosiveness of fundamental principles, especially those with religious bases, will convince negotiators to avoid those controversies, leaving many of them to be resolved in the adjudicative context. Many have observed that the concession of authority by political institutions often results from the desire to avoid difficult decisions.[235] Global tribunals will need to defuse tensions by adjusting foundational language and resolving residual fundamental issues.

In short, global tribunals will have to accommodate a wide range of foundational principles. The comparative law's identification of "families" of legal cultures may help rationalize these fundamental conflicts.[236] Zweigert and Kötz, in their leading comparative work, recommend that the [page 49] world's legal cultures can be distinguished according to their "styles," much like different categories of literature or fine arts.[237] They use five factors to classify legal families:

Based on these factors, they identify six groupings (Romanistic, Germanic, Anglo-American, Nordic, Far East, and Religious) and provide careful analysis of their distinctive features. However, although academically predominant, the strong transatlantic bias in these classifications raises questions that may require contributions from other societies as the global legal culture evolves. Here, it is sufficient to view this approach and the sophisticated work done by these and other comparative scholars to find commonality among categories of legal cultures as a useful device for melding the world's legal cultures, even in terms of fundamental principles.

C. Use of Case Law

The function and status of case law is the generally understood difference between the two systems of civil and common law. However, as with the popular view regarding differences in statutory interpretation, the disparity here is subtle. First, as is generally recognized, the approach to judicial decisions does differ, both in kind and degree, but civil law opinions are not without effect. Nonetheless, a sense of convergence in attention to the work of other judges does not affect the ideological distinction between judicial authority and judicial law making within the two systems. Second, the civil law doctrine has its own commitment to consistency, but that doctrine aims at overall consistency, not just consistency in dispute resolution. Third, the reputed distinction between the common law's inductive approach and the civil law's deductive approach masks the real difference in the logic applied when deciding cases, and hence the very impact of case law. Fourth, it is generally perceived that common law judges have more authority over legal questions than civil law judges, but they do not have more authority over their own cases. That is, the concept [page 50] of judicial authority is different, but in deciding cases the difference may not be the degree of judicial power but the nature of judicial power. These confusions must be worked out in order to envision the melding of the two systems in a global regime.

First, while there is a difference in the weight each system gives to prior decisions, that difference only partially explains the difference in impact prior decisions make in judging. Civil law judges do in fact take prior decisions into account. Indeed, Merryman observed: "A lawyer preparing a case searches for cases in point, uses them in his argument; and the judge deciding a case often refers to prior cases."[239] Only a fool would refuse to seek guidance in the work of other judges confronted with similar problems. The civil law system is unlikely to produce any more fools than the common law system.

Nonetheless, because the instincts of the two systems are fundamentally different, the convergence, some observe, confuses form with substance. The difference is not refusal to note precedent, but the ideology of stare decisis.[240] That is, the common law holds onto the idea that prior decisions are binding on subsequent judges, so that judges and everyone else must consider case decisions to be "law." True, the relevant law is not fundamentally derived from judicial decisions in common law systems, and hence common law judges must interpret and apply statutory language. True, common law judges seem less inclined to observe stare decisis than common law doctrine would dictate. At the same time, civil law judges are paying more attention to their colleagues' decisions than one might assume. Lawyers in civil law systems certainly refer to prior decisions. As translated into E.U. law, civil law judges are assuming more authority, and are more actively making law. Still, in the end, judging individual cases is fundamentally different. There remains a great gap in respective judicial goals. And there remains a fundamental difference in the impact those decisions have.[241] [page 51]

In global decisions, global judges will pay attention to the opinions of their colleagues, and hence will tend towards a system of precedent. Renowned expert Shabtai Rosenne notes that the ICJ Charter, contains an apparent limitation on the Court's freedom to employ judicial decisions as a subsidiary means for the determination of the rules of law. This, however, is not the interpretation placed upon that provision by the Court, which habitually refers to its own decisions and those of the [predecessor] Permanent Court.[242]

Therefore, global legal culture may already be accustomed to giving case law precedential force. But global tribunals may use precedent more as the civil law does, because its limits on judicial law development may be more appropriate to the international arena. Governments, including common law jurisdictions, will want more control, especially "statutory" control, over the global judiciary than afforded by the common law approach. The authority of case law in the global arena will be more a matter of acquiescence than imposition of common law stare decisis.

To some extent, the supranational tribunals themselves hold the key to asserting their authority to develop law. While the code concept itself grew from, and has largely been adopted around the world because of, a distrust of courts, a growing respect for courts is now present. The U.S. experience has demonstrated the advantages of strong courts. The status of courts has changed in European civil law countries. More to the point, their civil law progeny, the ECJ, has been a very activist court, and has enjoyed the trust of E.U. citizens.[243] Therefore, the global judiciary can overcome any inherent distrust of courts. To the extent they do, they, like the ECJ, will find their opinions having considerable, even approaching binding, force outside the adoption of a formal sense of stare decisis.[244]

The increasing weight given precedent by the ECJ demonstrates natural evolution in supranational law, even one based on civil law principles. The E.U. treaty clearly envisions courts, both E.U. and national courts, being prominent players in European affairs and not being subjugated to other E.U. or national institutions.[245] Ramos found that the very act [page 52] of "law finding" in the E.U.'s quasi-civil law system naturally creates weight for precedent.[246] In fact, judge-made law is apparent in the ECJ.[247] In a preliminary ruling requested by a German court, for example, the ECJ noted that because the protection of legitimate expectations exists as a general principle of law in the E.U.'s member states, then it must be protected as a principle of Community law.[248] However, in a later case, the ECJ applied the principle of legitimate expectations in a way, which seemed contrary to the laws of most, if not all, member-states.[249] Akehurst described what occurred in this case: "Each successive judgment of the Court slightly alters the content of the principle, so that the Court can end up by applying a principle in a manner which is contrary to the laws of all the member states."[250] In short, its growing legitimacy and record of competence allows the ECJ to apply its own law with some force.

The use of case law in the global arena is complicated by the absence of a structured global judicial system. Precedent has both horizontal and vertical effects.[251] The horizontal effect of precedent defines how strongly a court feels bound by its own prior decisions. No matter which legal ideology is dominant, courts tend to use their own prior decisions to inform the case at hand. In the global arena, however, the vertical impact is ambiguous and ad hoc. Common lawyers are accustomed to great weight being given higher court precedent in lower courts.[252] In contrast, as described in Section II.C, civil law incorporates control over lower courts, but that control, in specific cases, is not nearly as strong as that in common law systems. In addition, the hierarchy of global judicial systems is not clearly established. In short, the lack of vertical authority in the global legal regime will continue to be most frustrating to common lawyers, certainly more so than to civilians. The tangle of both trade and rights supranational adjudicative structures will prevent a cure to this frustration,[page 53] until a firm judicial hierarchy is agreed upon for whatever theoretical weight should be assigned to precedent.

A second subtlety in distinguishing the use of case law in the two systems derives from the civil law's own doctrines compelling consistency, the overarching concept of "legal certainty".[253] Both philosophies attempt to provide certainty to those covered by the law. The civil law system requires its judges to be faithful to statutory schemes, and the common law system requires commitment to prior, like decisions. Civil law judges must assure certainty within the whole society and not just consistency in dispute resolution. They decide individual cases in the context of a broad fabric of the law.[254] Legal certainty requires the civil law judge to be sensitive to societal factors.[255] In contrast, the common law judge is charged with applying the "law" in order to render individual fairness, but is also committed to treating like cases alike.

For this reason, civil law judges are more constrained than common law judges by specific statutory language. Nonetheless, U.S. jurisprudence also struggles with the overall confusion created by judicial law making. Justice Scalia of the United States Supreme Court has been a strong advocate for judicial faithfulness to language. For example, in his concurring opinion in Conroy v. Aniskoff,[256] he criticized the Court for not adhering to the literal language of the statute. He argued that free-wheeling interpretation "undermines the clarity of law."[257] Many common law jurists over the years have argued that the law should be predictable. Treating like cases alike can do this, but perhaps not on as broad a scale as the civil law doctrine of legal certainty. Tension between the two legal ideologies in the global arena then may be better characterized as disagreement over the doctrine employed to ensure predictability in the law. [page 54]

A third subtlety is that a difference in the logic used to decide cases has been expressed too formally. Civil law reasoning is said to be "deductive" (conclusions following from broad premises), whereas common lawyers are said to engage in "inductive" reasoning (reasoning from particular to general, or from a part to the whole). According to a Canadian Supreme Court judge conversant with both systems, there is:

This traditional distinction may not, however, express the true difference. As Lawson observed:

Actually, there probably is some sense in which civil law instinctively reasons from larger principles, as judges and lawyers must start with the code framework, and the common law instinctively begins with specific decisions that must be put together in order to divine the large principles. That is what common law lawyers learn to do starting from law school. But this difference in "logic" is probably the result of the sources and stability of sources, rather than a conscious commitment to a particular logical methodology.

A fourth subtlety must be recognized based on the difference between the authority of judicial opinions and the authority of judges. The theoretical power to make law is not the same as the power to decide the law in [page 55] an individual case. In a particular case, civil law judges have more discretion than common law judges because they may decide how much weight to give the opinions of other judges.[260] Theoretically, common law judges are bound by like cases whether they agree or not.

So, because civil law judges have more discretion about the weight they give to prior decisions, in a sense they have more authority to think about their cases in broader terms than common law judges. Common law judges concentrate on applying the law to the individual dispute. Thereby, as cases are decided individually, the law evolves interstitially. Civil law judges are expected to decide their cases as part of a broader fabric. They are more interested in finding the right decision, assuring aggregate fairness, than in assuring fairness in the individual case before them. Thus, the freedom from binding precedent is the freedom to assure that the case at hand conforms to the scheme of authoritative documents and the "law" in general, rather than to agree with colleague's judgments of equally narrow scope.

In sum, added together, these subtle differences in legal philosophy will affect the use of case law in the global arena. U.S. jurists will argue for strong, even binding, effect for precedent.[261] Civil law jurists will not resist the use of prior cases in making arguments and decisions, but they will expect global judges to exercise the freedom to find the law in individual cases consistent with their system. Global law will no doubt evolve through case law, but it is doubtful that case law will ever attain stare decisis effect.

D. Nature of the Judicial Decision Makers

Much of the division between the civil law and common law results from different perceptions of the courts, and the relationship between courts and the "democratic" institutions of government. The diverse historical experience with courts will affect how the systems are adapted in the global arena. Simply put, the common law grew out of distrust of majorities in democratic government, and the civil law reflects a distrust of [page 56] elitist courts.[262] Although not universal, civil law jurisprudence grew out of experience that suggests that courts can do at least as much damage as any other institution of government.

Such experiences are rare in U.S. history. The courts have more often been the vehicle of progress and protection of individual rights. In the early English experience of the common law, judges were allies of parliament in the struggle against royal (executive) authority. In the U.S., judicial independence from majoritarianism begins with Article III of the Constitution, and carries forward in essential concepts evolved over some 200 years.[263] The U.S. experience may justify a special commitment to the courts as the "least dangerous" branch, as the contrary experience in civil law nations justified distrust of courts.[264]

Many emerging democracies come from a revolutionary experience similar to France. This experience provides much of the real world impetus behind the choice of the civil law system.[265] Constraining judicial abuse runs through civil law judicial thinking. This reality resonates around the world because emerging democracies also have reason to distrust their judiciaries. Indeed, revolutionary Communist constitutions subjugate the judiciary to the legislature. Hence, the former Communist countries, influenced by their previous regimes, are acutely aware of the potential for judicial abuse.[266]

Because the ideologies of the civil and common law emerged from conflicting realities, it may be hard to reconcile the two visions of the courts.[page 57] Even in Continental Europe, however, courts are increasingly called upon to vindicate individual rights and societal values. The ECJ, the E.U. court created and accepted by civil law E.U. members, has not been put under strong restraints.[267] The E.U. treaties themselves authorize the Court to review and overturn legislation as well as discipline member governments. The ECJ has found its power similar to that of the U.S. judiciary: its power to mediate between the executive and legislative branches, and between the federal government and the states, is a source of much of its power. Its very un-civil law activism has resulted from this authority.

For whatever reason, not only is the ECJ a much more activist court, more closely aligned with U.S. courts, but it has made other European courts much more aggressive. Thus, we might predict that the attitude of the U.S. courts over the last few generations, and that of the ECJ and its effect on member's courts, have combined to create an emerging global judicial attitude in which courts do not shrink from challenging legislative and executive action either by their own supranational governments or by member state governments.[268] This attitude contrasts with the traditional civil law attitude, but has been increasingly accepted in civil law legal cultures.

One can expect both the WTO and the ICJ to be reasonably aggressive in carrying forward their respective global missions. The ICJ has already been characterized as activist.[269] Those familiar with the history of U.S. federal courts and the ECJ will predict that, in this era at least, supranational tribunals will accept broad authority, and members will ultimately concede the necessity to do so. For example, a former ICJ Registrar noted that Court's development in this direction:

The WTO adjudicative bodies are likewise asserting themselves, as discussed in Part I. Given the evolution of their own courts, lawyers from both sides of the Atlantic will be comfortable with this trend. Indeed, those in tune with global goals will be quite happy with it.

Another aspect of the civil law system that will assuage the civil law mind when confronted with activist global tribunals is the civil law's own use of courts technically outside the judiciary for tasks that require broader discretion. The French Council of State was created to review legislative and other government action. Since the Council was not part of the judiciary, it could engage in aggressive policy-oriented review [271] Most civil law nations have separate administrative courts to insulate their regular courts from involvement with the government.[272] Civil law systems have also established constitutional courts rather than authorize the "judiciary" to review legislation.[273] These courts are not considered part of the judiciary, and hence, may engage in review of legislation consistent with civil law ideology. Through these courts, the civil law culture has become accustomed to judicial review, and those from civil law cultures will have fewer problems with global "courts" exercising functions traditionally prohibited to the civil law judiciary.

There remains a distinction between how the civil and common law envision the judicial role in society. Common law judges are lawmakers, and hence, it is natural to conceive that common law judges have greater authority. It is certainly true that, in the aggregate, they are expected to evolve the law. Therefore, as an institution, a common law judiciary seems to have a more important social role than that of a civil law judiciary. The common law judiciary has more status in the system, as well. This status is enhanced in the legal community by the fact that common law judges come to the bench as successful members of the practicing bar. It is not difficult to see why both judges and the bar constantly press for a common law conception of the judicial role. Experience with mixed systems, those combining common law and civil law elements, suggests that [page 59] global tribunals and their bars will attempt to assert authority for their law-making powers using common law arguments.[274]

As the two legal cultures conceive of a global judiciary, the source of authority in individual cases will also create a basis for contention. Civil law judges have discretion in deciding their cases, but the source of that discretion differs from the common law. In the civil law system, a court must find some delegation, sometimes implied, to do equity.[275] In contrast, a common law judge has inherent authority derived from the separate equity tradition.[276] Since civil law judges interpret their authority to do equity, they might seem to have similar authority. But the nature of the distinction between the two cannot be ignored. On the world stage, civil law and common law lawyers and judges will be skeptical of each other's approach to equity authorization. Civil law judges and lawyers will argue authority based on some delegation, whereas common law judges and lawyers will assume that global judges will have inherent authority to consider individual fairness where they see fit. Both because civil law lawyers predominate and because assumptions of discretion, even to do individual fairness, are suspect, global legal culture will probably more closely resemble the civil law approach. Nonetheless, U.S. lawyers are not unarmed. Their administrative and constitutional law is rich with delegation jurisprudence.

The two transatlantic legal cultures differ in the operation of their judicial hierarchy. While there is no established global hierarchy, rulings of the ICJ are usually given great deference by other supranational tribunals. However, a similar tendency is not apparent regarding trade. The WTO Appellate Body's pronouncements seem to hold no particular weight in other supranational trade tribunals. Rights tribunals do not feel bound by ICJ law either.[277] This situation not only affects the nature of precedent, as described above, but it weakens the overall concept of a global judiciary. U.S. lawyers will favor a unified hierarchical judicial regime. They are accustomed to one Supreme Court of ultimate authority. More basically, the common law system of judicial law making requires an ultimate judicial authority, but the civil law system does not need such a final judicial authority. [page 60]

U.S. lawyers are likely to press the system to form a unified global judicial regime.[278] Europeans, on the other hand, are more accustomed to separate court systems, and might not be as anxious to unify the courts.[279] The several global tribunals might have and could still form into a unified judicial regime, but civilians will not have the instinct to do so in a way that may well drive U.S. lawyers.[280] They will see the WTO judiciary and the ICJ as founded on two very distinct governmental institutions whose "competences" should be kept separate. The need for different expertise is one of the forces that has kept supranational tribunals separate.[281]

Europeans and Americans differ on the use of specialized court systems. Europeans are more familiar to separate court systems. The French have the Cassation, the final court for general law, and the Council of State, the final court for administrative law, along with a separate constitutional council.[282] The Germans have five separate court systems and a Constitutional Court. A constitutional court, separate from those that handle regular legal issues, is the norm in civil law countries.[283] In the European supranational regime, the ECJ has jurisdiction over trade and the ECHR has jurisdiction over rights enforcement. The CFI provides another E.U. example of the continental European tendency to create specialist courts.

Still, a unified system would no doubt provide coherence in the development of global law, and coherence is essential to legitimacy. Indeed, the E.U. could be used as a counter-example to the civil law tendency toward establishing specialist courts. The ECJ, in the exercise of its trade jurisdiction, has taken on many rights-enforcement questions, and it would take little technical effort to shift jurisdiction over issues of rights into that court and create a supreme court of Europe. International law has never [page 61] had a unified system.[284] Nonetheless, the proliferation of global and supranational tribunals is increasingly creating incoherent and sometimes contradictory principles.[285] Consistency and certainty suffer, so that in the end the U.S. legal view may have the strongest practical case.

E. Procedure

Much of the tension in the emerging global legal culture will revolve around procedural principles. Tension will arise at the theoretical level because procedural principles express a legal culture's understanding of fundamental fairness, making alien ideas about process inherently suspect. Practicalities also fuel this tension because practical lawyers will feel disadvantaged by unfamiliar procedural designs.

A significant gulf exists between the common law "adversarial" model and the civil law "inquisitorial" model. The common law lawyer has been traumatized by the "star chamber" horror story ever since the English judges helped parliament triumph over the executive-monarch. The very term "inquisitorial" calls up these horrible images. On the other hand, much about the adversarial model offends fundamental instincts among civil lawyers as well. In fact, these terms do not capture the true difference between the two models. The overarching contrast is the relative position of lawyers and judges. Civil processes are adversarial in their own way, and one would hope that the common law process aims at inquiring into the truth. They differ in the techniques employed to assure participation and discovery of the truth.

The judge-managed process of the civil law has advantages in assuring equality of opportunity. As described above, once the parties have brought a case to court, the court assumes responsibility for the effective handling of the case.[286] In contrast, common law pleadings merely get the plaintiff into the courthouse. The lawyers must then develop the case and build [page 62] the record, with the judges acting more like referees. The information that becomes the record will be validated during trial.[287]

The role of the trial itself is quite different between the two systems. A common law trial is the end product; all the real work is done at trial, and everything else is preparatory. In contrast, the civil law depends on a process, with the trial some part of that process. It is not usually the dominant part, except when the final decision is made.

The civil law depends much more on writing. The common law distrusts written proceedings.[288] Its oral orientation requires writing to be converted essentially into testimony and validated by admission at trial under specific rules of admissibility. In short, the relative competence of the parties' lawyers determines the effectiveness and equality of opportunity in the common law process, whereas the civil law process focuses more on a sense of fair