Double Reasoning in the Codified Mixed Systems - Code and Case Law as Simultaneous Methods
6 Journal of Comparative Law 28 (2012)
29 Pages Posted: 14 Aug 2012 Last revised: 8 Oct 2012
Date Written: August 13, 2012
The mixed jurisdiction judges use the code and the case law in various combinations to produce a system of double reasoning. Where the texts contain principles (rather than rules) and hence are particularly wide, the judges of the codified systems are prone to use two methods at once. The field of tort law, presided over by the tort General Clause, serves as one area par excellence to observe this phenomenon, but dual reasoning will be used in all branches of law and in all legal systems where the texts or terminology are of similar breadth.
Judges begin analysis with the relevant and initially controlling general code provision and then appear to be deducing their way toward a conclusion based upon that codal premise. However, they frequently cannot finalize a syllogism (or rather the series of syllogisms involved) from the text tout court. The text offers no more than undefined words like "fault" or "causation" in articulating its principle, and it may even be considered a standard too nebulous to be called a principle. The judges frequently need an additional rule ab extra to serve as a subordinate premise to fill the inter-space in the logic. There are at least three distinguishable types of jurisprudence that fill this inter-space. The first is what is popularly called the Seminal or Leading case, the second may be described as the Concretizing case, and the third may be called the Lacuna-Filling case. The study of these three types will indicate that the judge under a code pays such close attention to the "facts" and "rules" generated by such cases that it is sometimes difficult to distinguish the reasoning from that of a common law jurist operating without a Civil Code.
Keywords: Mixed-Jurisdiction, Double Reasoning, Concretizing, Lacuna-Filing, Deductive Reasoning, Seminal Cases
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