A Common Law Perspective on the Supreme Court and its Functions

81 Studia Iuridica 15 (2019)

UC Hastings Research Paper No. 370

31 Pages Posted: 15 Nov 2019

See all articles by Richard Marcus

Richard Marcus

University of California Hastings College of the Law

Date Written: November 14, 2019


The University of Warsaw is to be commended for focusing attention on the role of a supreme court, for that can be a critical component of a court system and, more generally, critical also to the fair functioning of a democratic government (and to others, no doubt). It makes sense to start out such a conference considering the roles a Supreme Court can play in a judicial system, and also to approach that question with an eye to the somewhat divergent attitudes toward the judicial role of common law and civil law systems. Those differences may mean a lot for the role of such a court and for the organization of the Court, a topic to be taken up by the next panel. I hope I will not trespass too much on topics to be addressed by others in my presentation. I will argue that questions of design and function – while important – probably are not more important than more elusive questions about institutional status and evolution, something one could refer to as “legal culture.” So we must approach our analysis with considerable humility. Particularly here in the countries of the former Warsaw Pact, where constitutional and democratic institutions have taken root over the last quarter century, it is important to appreciate the permutations of that sort of development.

I am here as the representative of the common law approach to the function of a Supreme Court, and will begin by cautioning that in some ways the common law v. civil divide is not entirely informative in regard to procedure, but that it is highly important in terms of the role of judges in “declaring” law. I will also speak mainly about the Supreme Court of my country, for it is a distinctive institution. That said, the US situation offers an example of functions a court may have that differs from the function of courts in many other judicial systems, and those differences can importantly be said to relate to its role in a common law system. At the same time, I will regard such questions as whether the Supreme Court should have the power of judicial review of legislation as somewhat background. In the US, as is well known, we have had such review since Marbury v. Madison, but that 1803 decision did not immediately place a stamp on our Court that remained unchanged for the ensuing 200 years.

Suggested Citation

Marcus, Richard, A Common Law Perspective on the Supreme Court and its Functions (November 14, 2019). 81 Studia Iuridica 15 (2019), UC Hastings Research Paper No. 370, Available at SSRN: https://ssrn.com/abstract=3487172

Richard Marcus (Contact Author)

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