Edited by Antonina Bakardjieva Engelbrekt and Joakim Nergelius
Chapter 1: Legal Change and Economic Performance: An Assessment
Gianmaria Ajani I. THE AUTHORITY TO CHANGE THE LAW Within the Western legal tradition, norms are set through two different procedures: reiteration (case law) and parliamentary law-making. While the first one goes back to the origins of the common law in England, the second, in its actual practice, is historically indebted to the birth of parliamentary states and of democratic participation in France, following the 1789 Revolution. Parliamentary (and governmental) law-making has, however, increasingly contaminated the common law systems. The rest of the world, in spite of any possible contact in the past with the common law, shares the preference for statutory laws. Following this standard simplified conceptual dichotomy, those empowered to change the law are the judges and the legislators. The difference in the democratic legitimacy of judges and of legislators is compensated by asking the institution perceived as less legitimate (the judges) to provide extensive reasoning when they depart from a precedent. A similar burden has not, so far, been imposed upon legislators, even if a duty to provide reasons for lawmaking can be found in certain cases following national law. Furthermore, judges tend to conceal creativity by describing their role as one of ‘mere law-finding’, a concern which does not preoccupy the fully sovereign parliamentary assemblies. The simplicity of the above dichotomous conceptualisation is the result of a formalistic description of legal change, which is focused on the final outcome of the process, and not on the reasons for legal change, or on the results of law...
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