Implications: The Influence of the Master Narrative

Common law v. civil law dichotomies?

From a jurist's perspective, the first pitfall of legal narratological research is the false dichotomy frequently made between common law and civil law reasoning. It is certainly the case that common law reasoning has an affinity for the concept of narrativity, because it is normatively based on precedent. Nevertheless, it is often ignored that civil law reasoning also includes precedent as a source of law; precedent, however, is given less weight when it comes to bowing to its authority in the sense of the stare decisis characterising common law reasoning. Here we find a comparable rather than a dissimilar situation. I emphasise this point for interdisciplinary reasons, since in academic discussions with scholars from other disciplines of the humanities, I often encounter the misconception that civil law reasoning is merely syllogistic rule application that is deductive in nature, because it supposedly moves from abstract codified legal norms to a decision about a specific case. In other words, in contradistinction to common law reasoning, civil law reasoning supposedly espouses the idea of law as a mere set of codified propositions, a domain of written rules.

As I hope to have shown in this book so far, from a hermeneutical point of view, the above is hardly the case, because while the written rule may be the starting point of reasoning, it is not the sole determinant of the outcome. Nor is it the case that the judge has a partly prosecutorial function. The position of the judge between the prosecuting government official and the defendant in criminal cases, or as the arbiter of the dispute between two civilian parties, is that of the impartial third party, who indeed connects the relevant statutes and principles of law to the case at hand, and who functions as a check, either against the abuse of government power in the asymmetrical relationship between the state and the citizen, or against a comparable abuse of power between civilian parties. But she does so, ideally at least, not by means of a deductive methodology but, as noted in Chapter 6, by way of a combined effort of grasping together the relevant facts and the legal norms. What is more, she is able to make law.