The Judge as Legislator? Three Land-Mark Cases in Civil Liability Concurrence

Abstract

This paper explores the critical yet often understated role of judges in shaping the law, examining the fine line between interpreting statutes and respecting legislative authority. It delves into the Romano-Germanic legal tradition, where statutory law is paramount, yet judicial discretion provides an indispensable means of addressing real-world issues that no statute could fully predict. Here, the analysis captures the judiciary’s challenge: respecting legislative intent while ensuring the law remains relevant amid societal change.

In its second half, the paper conducts a rigorous analysis of three landmark cases, showing how judicial decisions frequently transcend simple application, actively influencing the legal framework – especially in the realm of civil liability concurrence. By examining historical precedents from French, German, and Portuguese courts, this study reveals how judges have occasionally assumed a quasi-legislative function, stepping in to resolve ambiguities and fill legislative gaps. Ultimately, it underscores the judiciary’s unique capacity to foster legal coherence while upholding the principle of judicial independence.

Keywords: Case law, statute law, interpretation, civil liability, liability concurrence