Christoph A. Kern THE ROLE OF THE SUPREME COURT

Prévia do material em texto

THE ROLE OF THE SUPREME COURT
Revista de Processo | vol. 228/2014 | p. 15 - 36 | Fev / 2014
DTR\2014\310
Christoph A. Kern
Livre-Docente e Doutor em Direito pela Universidade de Freiburg. LL.M. pela Harvard
Law School. Professor na Universidade de Lausanne, Suíça. Ex-Docente na Universidade
de Freiburg, Alemanha.
Área do Direito: Internacional
Resumo: O autor estuda, à luz de diversos critérios e em muitos países, a função dos
Tribunais que ocupam o topo da pirâmide dos órgãos do Poder Judiciário.
Palavras-chave: Suprema Corte - Corte Constitucional - Corte de Cassação -
Desenvolvimento do direito - Uniformidade do direito - Restrições ao acesso a Cortes
Supremas.
Abstract: The author studies in the light of various criteria and in many countries, the
role of the courts which are at the top of the pyramid of the Judiciary.
Keywords: Supreme Court - Constitutional Court - Court of Cassation - Development of
the law - Uniformity of law - Restrictions on access to the Supreme Courts.
Sumário:
- I.Introduction - II.The Classic Question - III.The Classic Approaches - IV.General
Analysis - V.Conclusion
Recebido em: 07.11.2013
Aprovado em: 13.12.2013
I. Introduction
The role of the Supreme Court is a recurrent topic for the legislature as well as for
academia. Indeed, legal scholars have been discussing this topic for years. These
discussions have taken place not only on a national, but also on an international level. As
an example, the International Association of Procedural Law had dedicated its 1997
conference, held in Thessaloniki, Greece, to the role of the Supreme Courts at the
national and international levels, with the distinguished John Anthony Jolowicz from
Cambridge1 as general reporter.2 For this conference, my academic teacher Rolf Stürner
had, together with his then assistant Robert Schumacher, provided the report on
Germany, Austria, Switzerland and Hungary.3 Against this background, it is hardly
possible to say something completely new on the role of the Supreme Court, and it is
even doubtful whether the topic can be presented in a way it has never been discussed
before. By the same token, it is impossible to process or to even cite all the relevant
literature. For these reasons, talking about the role of the Supreme Court is a very
difficult task.
At the same time, however, talking about the role of the Supreme Court is also a very
gratifying task. It raises general questions, involves many procedural institutions, and
comparative law scholars know that there is no one single answer. Taking advantage of
these features of the subject matter, we will first discuss the classic question, i.e., the
question about the purpose of the Supreme Court, and then have a look at the classic
approaches that can be taken. This will be followed by an analysis. A last part concludes.
II. The Classic Question
1. Presentation
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a) The Question
Almost any discussion on the role of the Supreme Court is dominated by the question of
whether appeals to the Supreme Court are or should be made available only in the
interest of the parties to the litigation at issue or also serve a public interest.4 To put it
somewhat differently, the classic question reads: Do Supreme Courts serve exclusively a
private or also a public purpose?5 At first glance, this question may seem to require a
decision between two opposed alternatives. However, the question itself suggests that
the answer can only consist in determining the place of the Supreme Court on a
continuum between private purpose and public purpose. This is so because the question,
at least in the form it was put above – i.e., do Supreme Courts serve exclusively a
private or also a public purpose – implies that the Supreme Court always serves a
private purpose. Indeed, even those authors who emphasize the public purpose of the
Supreme Court concede that within the boundaries of this purpose, appeals to the
Supreme Court also serve the private interest of the parties.6
Of course, one may even doubt this starting point, as appeals may be lodged by a state
official only and the outcome may then be without effect for the individual case.
However, even in legal systems where such an "appeal in the interest of the law"
("pourvoi dans l’intérêt de la loi") is available,7 the Supreme Court is not limited to
hearing these appeals, but remains first and foremost a court to which the parties can
appeal.
If we therefore accept that, as a matter of principle, the Supreme Court always serves a
private purpose at least to a certain degree,8 it only remains to be determined whether it
also serves a public purpose. This question, in turn, cannot seriously be answered with
"no", as any resolution of a dispute is, in a large sense, also in the public interest.9 Thus,
the answer must provide some information on the weight of the two respective
purposes.
It follows that the classic question is in fact much more nuanced than it seems to be at
the outset: The classic question is where on a continuum between a predominant private
purpose and a predominant public purpose a legal system – or a reform draft – places
the role of its Supreme Court.
b) Private Interest and Public Interest
Having thus determined that the classic question does not require a decision between
two opposed alternatives, but a certain form of positioning between private and public
interest, the meaning of "private interest" and "public interest" must be defined.
Typically, "private interest" in this context is equated with the interest the parties to
litigation have in obtaining a correct decision of their individual case (individual justice).
10 From this perspective, the Supreme Court is seen as the court with the most qualified
judges who will discover and correct mistakes of the lower courts. This "private interest"
role of the Supreme Court goes hand in hand with the "Superior Court" model11 if one
distinguishes "Superior Courts" whose role it is to correct errors and "Supreme Courts"
whose role consists in provide guidance.12
"Public interest" in turn can, according to this logic, be defined as any general interest in
the decision of an individual case, that is, an interest which someone else, i.e., a person
different from the parties to litigation, may have. Typically, the general interest alluded
to in this context is the interest in a uniform application of the law and, in most modern
legal systems, the interest in the development of the law. Through this lens, the
Supreme Court is seen as the court whose judges have the best overview on the
application of the law by lower courts and can therefore correct any deviation and, if the
legal system allows them to do so, develop the law in areas where due to a lack of
precedents or legal rules no legal certainty exists yet (guidance)13 – a "Supreme Court"
stricto sensu in the approach which distinguishes between "Superior Courts" and
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"Supreme Courts".14 Clarity and uniform application of the law in turn enhance
predictability and thus reliability and foster public faith in the court system and public
institutions generally.15
2. Discussion
At first sight, this distinction between "private interest" and "public interest" regarding
the role of the Supreme Court may seem clear and even obvious. However, at a closer
look, the distinction becomes blurred. Therefore, the classic question and the continuum
answer deserve a more thorough discussion.
a) "Public Interest" as "Private Interest"
On the one hand, most if not all aspects which could be considered aspects of "public
interest" can be translated into a "private interest" as well.16
aa) Uniformity of the Law
First, the parties’ interest in obtaining a correct decision of their case also encompasses
that this decision is in harmony with other decisions in which the sameissue was
decided. This is so because the uniformity of the jurisprudence, or, in other words, the
equality in the application of the law, are aspects of the principle of equal treatment
before the law, which is a fundamental principle of justice,17 a principle which, according
to modern approaches, has not only an over-individual, objective but also an individual,
subjective character.18 Therefore, the purpose of preserving the uniformity of the law
which is one classical aspect of a "public interest" Supreme Court also has a "private
interest" component.
bb) Development of the Law
Similarly, the public interest in the Supreme Court’s development of the law is also
paralleled by a private interest. Of course, the parties are first and foremost interested in
having their case decided correctly; typically, they have no immediate interest in
creating a precedent for future cases. However, this need not be so. Parties which find
each other in the future in a dispute similar to the one being decided can directly benefit
from the precedent which was the outcome of their appeal to the Supreme Court. A
recurrent confrontation on identical questions of law may occur in business relationships
with continuing obligations like service contracts or supply contracts. Moreover, such a
direct private interest in creating a precedent which develops the law can also be present
only on the side of one party. An example is a bank or insurance company facing many
identical lawsuits with clients which have their origin in a standard clause. Apart from
these special situations, the public interest in developing the law can easily translate into
a private interest insofar as future cases are concerned. Thus, the existence of a
precedent can prevent potential parties from initiating a lawsuit which would, for one
party, prove futile; it can facilitate estimating the outcome of a potential lawsuit and
thereby improve the chances for settlement; and it can avoid cost and delay necessary
to determine the law with regard to a particular question.
cc) Restrictions on Appeals to the Supreme Court
Even restrictions on the availability of appeals to the Supreme Court, which are typically
considered as existing for reasons of public interest like the avoidance of cost or court
congestion, have a "private interest" reflection. First, restrictions on the availability of an
appeal to the Supreme Court prevent the parties from investing time and money in
another instance, an investment which often turns out vain but is nevertheless made
because of the appellant’s overconfidence.19 Second, parties barred from appealing to
the Supreme Court achieve finality in their legal relationship at an earlier point in time.
This can be more beneficial than a better, but late, decision.20 Third, parties typically
benefit from cost savings within the judiciary as taxpayers, and last but not least can
also benefit from less delay in other cases due to lighter court dockets.
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dd) General Observations
That "public interests" can be translated into "private interests" is by no means a
surprise. "Public interests" are, or should be, the sum of weighted private interests which
an individual may not fully appreciate in his or her particular situation, but which on a
larger scale are prerequisites for a coherent society. This does not mean that the
distinction between private interest and public interest was useless. However, it should
always be kept in mind that there is an evaluative element in the definition, and that,
therefore, a deductive reasoning based on a clear distinction might fail to bring about
good results in the real world – an issue which will be developed further after having
approached the distinction from the other side, the side of "public interest".
b) "Private Interest" as "Public Interest"
On the other hand, aspects which are normally considered to be of private interest do
also involve the public interest.
aa) Correct Decisions
First of all, that an individual case be decided correctly is not only in the private interest
of the parties, but also in the public interest.21 The law is not just a technical instrument,
but to a certain degree always contains policy decisions which need to be implemented
in real life by correct application of the law. Where no decision has been taken, but the
law is silent, it is important that the court develops a solution which fits into the system
as a whole. Apart from this policy issue, only the correct application of the law creates
trust in the judiciary, the legal institutions and, more generally, the functioning of the
state. Predictability is an important psychological and economic factor. A predictable and
reliable legal system, a system offering legal certainty, is a cornerstone of stable and
economically successful societies.
bb) Reasonable Cost
The private interest in having access to the Supreme Court at reasonable cost is
reflected by the public interest of not creating a discrimination based solely on wealth.
Not only would such discrimination conflict with other public goals like uniform
application and development of the law, but it could also impair the feeling of justice
within society.
cc) General Observations
That "private interests" relate to "public interests" may be somewhat more surprising
than the observation that "public interests" can be traced back to "private interests".
However, regarding many individual issues, it is just the other side of the medal. In
addition, for private interests which can be accepted from a more general point of view,
like the interst in an equal treatment before the law,22 it is not surprising that there can
be found an over-individual argument to defend them as well. Again, the knowledge of
this interrelation does not render the distinction useless, but is a caveat against too
technical deductions from the defined or ascribed purpose of the Supreme Court.
c) Implications
What implications can be drawn from the foregoing for the classic question and its
answer? On the one hand, it seems still fair to ask whether the role of a Supreme Court
in an existing legal system or a reform project is, with regard to a particular issue, more
oriented towards serving the private interest or more oriented towards serving the public
interest. On the other hand, it seems problematic to ask the classic question without any
limitation, because the answer to this general question implies a weighting of the various
private and public interests involved. Borrowing from natural sciences, the answer seems
to be not just one-dimensional, so that it could be expressed on a continuum, but rather
multi-dimensional, which would require a matrix. To put it more colloquially: Things are
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more complicated than they seem.
III. The Classic Approaches
1. Presentation
Not only the classic question about the role of the Supreme Court and its traditional way
of searching an answer between the two poles of "private interest" and "public interest",
but also the two classic approaches to any discussion of the role of the Supreme Court
deserve closer attention. These two classic approaches that can be identified throughout
all reflections on the role of the Supreme Court are a "top down" and a "bottom up"
approach.
a) The "Top-Down" Approach
The "top down" approach consists in determining – in an abstract way – the role of the
Supreme Court and then deducing answers for particular rules of the procedural law
from this role. If, for example, the role of the court is to ensure the uniform application
of the law, then one could deduce from this definition of the role that only appeals in
cases involving divergent precedents are admitted; if, in turn, the role of the Supreme
Court is fixed to guarantee the correct application of the law, it could be deduced from
this definitionthat all appeals in which the appellant alleges an erroneous application of
the law should be admitted.
Quite obviously, the "top down" approach is an approach which may primarily be used
by the legislature or a reform commission, as they are in a position to model the
procedural rules according to pre-established, abstract ideas. Academics may as well use
this approach in order to reveal inconsistencies and support their wish for amendments
to the existing rules.23
b) The "Bottom Up" Approach
The "bottom up" approach does not depart from a pre-established role of the Supreme
Court, but looks at the relevant characteristics of the procedural law and tries to
determine the role of the Supreme Court based on these findings. If, for example, an
appeal may be lodged by a public official independently of the parties, this can be taken
as a strong argument for concluding that in the legal system at issue, the role of the
Supreme Court tends to be oriented towards the public interest.
This approach lends itself to academics, and in particular comparative legal scholars,
who try to identify the true characteristics and fundamental policy decisions underlying
the particular rules of a legal system.24 Of course, the way the legislature or a reform
commission conceived the role of the Supreme Court should not be ignored in this
context. However, the professed conceptions need not be in line with the actual law.
c) Relevant Procedural Issues
Which, then, are the relevant procedural issues that, on the one hand, are susceptible to
a deduction from a pre-established role of the Supreme Court in a "top down" approach
and, on the other hand, can be considered as significant for determining the role of the
Supreme Court in a "bottom up" approach? Some of them have already been mentioned
in the examples. Nevertheless, it seems worthwhile to attempt a more complete picture.
aa) Access to the Supreme Court
A first and significant procedural issue which is relevant for the role of the Supreme
Court is the regulation of access to the Supreme Court, the question of "getting in".
As already mentioned above,25 in many countries of the Romance legal family like
France, Italy, Spain, Belgium and Greece26 a state official can in all cases lodge an
appeal to the Supreme Court independently of the parties and even after the deadline
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for lodging an appeal which applies to the parties is over; in other countries like
Germany, such an appeal "in the interest of the law" only exists in a limited number of
cases like family law cases.27 If the legislature conceives the Supreme Court as an
institution whose purpose is to further not only the private, but also the public interest, it
makes sense to provide for such an appeal "in the interest of the law". At the same time,
the availability of an appeal in the interest of the law can be considered an argument for
a "public interest" Supreme Court, this argument being the stronger the more frequently
an appeal in the interest of the law is actually being lodged by the state official.28 Mostly,
these appeals play only a limited role, though.29 Therefore, they should not be
overstated when discussing the role of the Supreme Court.
In most if not all legal systems there are rules which restrict access to the Supreme
Court to certain errors of the lower courts.30 Of course, any restriction serves the public
interest insofar as the workload of the Supreme Court is thereby reduced, ensuring the
quality and uniformity of the decisions and the receptivity of the legal community.31
However, any restriction also furthers the private interest in achieving finality and
reducing duration, as without an appeal to the Supreme Court, the decision of the lower
court has res judicata. Ex ante, timely finality is in the interest of both parties; that the
losing party ex post would prefer to have access to the Supreme Court cannot be taken
into consideration for determining in a general way the role of the Supreme Court. As
restrictions serve both the private and the public interest – which cannot surprise in the
light of what has been said before on the classic question –, it is indispensable to
scrutinize the kind of restriction to determine whether there is a predominance of the
public or the private purpose.
The widespread, although not ubiquitous,32 restriction to questions of law33 appears to
be a restriction which primarily serves the public interest, as errors in the determination
of the facts can only exceptionally become relevant in other cases, while errors in the
application of the law may be repeated by the same court or other courts in later cases.
34 Not surprisingly, this has sparked a debate on how to distinguish "law" and "facts",
and while some authors seek a conceptional definition,35 others propose to consider an
issue of law any issue of a general, typical nature which can be a directive for future
cases, an issue of fact any issue of only individual, atypical nature which only concerns
the individual case.36 Be this as it may, there is also an important "private interest"
aspect in that the restriction on questions of law reduces duration and cost and is not so
heavy a burden, as the parties typically had some chance to correct errors of fact in a
second instance, be it by classifying them issues of law.37
Restrictions based on the amount in dispute38 or the amount for which the appeal is
sought39 are more difficult to classify, as they may also serve to protect the potential
appellant from incurring disproportional costs or an unreasonable risk. In the end,
though, restrictions based on the amount tend to serve rather the primarily public
interest in alleviating caseload, and the higher the necessary amount is, the more the
public interest comes to the fore.40
Restrictions on only those cases where the decision of the Supreme Court is necessary to
ensure the uniformity of the law, to develop the law or to answer a general question,
which apply inter alia in Austria and Germany,41 make it easy to identify their primarily
public purpose;42 however, the weight of the restriction very much depends on how the
courts handle these restrictions. For example, if it suffices for a "general question" or a
"necessity to ensure the uniformity of the law" that a fundamental constitutional right of
the appealing party has been violated or the decision appears to be arbitrary – a path
trod by the German Federal Supreme Court –,43 the door for appeals in the private
interest may be wide open.44
Another feature of access regulation is whether the appellant needs to apply to the
deciding court (iudex a quo) or the Supreme Court (iudex ad quem) for leave to lodge an
appeal,45 and according to which criteria such leave is granted by the courts. The
requirement to first apply for leave to lodge for an appeal as such is neutral, but the
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mere necessity to file an application may prevent parties from considering to appeal and
therefore tends to affect the private interest. Most important, however, are the criteria
for granting leave. If there are clear criteria, what has been said on restrictions applies
mutatis mutandis here as well. If the appeal is not one of right but the court has
discretion, as is the case with the U.S. Supreme Court’s writ of certiorari and most State
Supreme Courts in the U.S.,46 but also the House of Lords and now the U.K. Supreme
Court,47 the ultimate weight of the public interest depends on how the court exercises
this discretion; it seems obvious, though, that courts have a tendency of granting leave
only in cases involving a public interest, and not even in all of them.48
bb) Termination of the Appeal
The counterpart of access to the Supreme Court is the termination of the appeal
proceedings by the parties. Here, the question is whether the appellant canwithdraw its
appeal at any time, and whether the appellee can acknowledge the claim and thereby
terminate the appeal avoiding a decision on the merits. Related is the question whether
the Supreme Court promotes settlement, as settlement is necessarily followed by some
form of termination of the appeal by the parties. Where the parties have the power of
terminating the appeal before a decision on the merits, they can deprive the Supreme
Court from the chance to create uniformity and to clarify and develop the law by
deciding on the appeal. This is in line with a "private interest" role of the Supreme Court.
Where, to the contrary, the power of the parties to terminate the appeal is restricted,
the "public interest" role of the Supreme Court is reinforced. However, the weight of this
restriction depends very much on the details of the restriction: On the one hand, a
restriction which completely forbids any termination and allows a state official to
continue the appeal obviously emphasizes the public interest. On the other hand, a
restriction which consists in the requirement of the other party’s consent – a restriction
which has been introduced very recently in Germany49 – is more difficult to interpret; if
access to the Supreme Court is "public interest" based, it has a tendency to further the
public interest.
cc) Features of the Court System and the Proceedings
Among the features of the proceedings, a first question concerns the number of
instances and the court system as a whole. As a general matter, the lower the number of
available instances, the more important the private interest role of the Supreme Court
should be. Most countries provide for a court system with three instances. However, the
existence of a separate constitutional or international human rights court to which
citizens can apply in defense of their constitutional or human rights should also be taken
into account. The availability of an appeal against decisions of the Supreme Court to a
separate constitutional or human rights court – typically an extraordinary appeal – can
work in two directions: It can allow a rather "public interest" oriented role of the
Supreme Court as the "private interest" is protected by another instance, but it can also
strengthen the "private interest" role of the Supreme Court if the Supreme Court is – or
feels – urged to avoid too many successful appeals to the constitutional or human rights
court.50 In Germany, it is rather the latter situation which describes the interplay
between the Federal Supreme Court and the Federal Constitutional Court,51 and the
same can, by and large, be said about the national Supreme Courts and the European
Court of Human Rights, whose protection is considered subsidiary to the safeguarding of
human rights by national courts.52
Having now a look into the appeals proceedings as such, another feature which could be
seen as relevant regarding the role of the Supreme Court is whether amici curiae are
admitted or not. An amicus curiae is a third person which is not party to the dispute at
issue but who wants to bring certain points to the attention of the court by submitting a
brief.53 This broadens the information of the court about the background of the lawsuit
and the implications its decision could have and, at the same time, gives the amicus
curiae the opportunity to participate in the proceedings in a special, although limited,
way. Although parties have an interest in the admission of amici curiae who support their
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case, their true purpose is to improve the decision of the court and allow for a certain
form of participation. Therefore, an appeals procedure in which amici curiae are admitted
could be seen as fostering the "public interest" role of the Supreme Court.54
dd) Type of Decisions
The type of Supreme Court decisions may also be a relevant issue for the role of the
Supreme Court. "Type" in this sense means whether the Supreme Court can only
confirm or reject a lower court’s holding – the so-called "cassation model"55 whose most
prominent exponent is the French Cour de cassation – or decide the case of its own and
differently from the lower courts’ decisions, i.e., "reform" the earlier decisions56 – where
the Supreme Court also deals with questions of fact, this type is called the "appeal
model",57 a model prevalent in Scandinavia;58 where it only deals with questions of law
and is not bound to confirm or remand, but may also decide, this type is called the
"revision model",59 borrowing the latter expression from the somewhat misleading
Austrian and German terminology.60 The first case seems to be more in line with the
"public interest" role, as the court only reviews other courts’ decisions without any
possibility of being creative of its own, while the latter case seems to further the parties’
private interest in obtaining a decision in due time.
ee) Effect of Decisions
Finally, the effect of decisions may also play a role. A legal system in which all decisions
of the Supreme Court are legally binding on lower courts puts much emphasis on the
"public interest" role of the Supreme Court. Where only some decisions are binding, as is
the case for the "sumula vinculante" in Brazil, the "public interest" role of the Supreme
Court is somewhat weaker. However, even in legal systems without a strict rule of stare
decisis, decisions of the Supreme Court normally exert an important influence on lower
courts. For this reason, the differences are not that striking in practice. If follows that
the significance of this issue should not be overstated.
2. Discussion
What follows from the foregoing selection of relevant procedural issues for our two
classic approaches to the role of the Supreme Court, i.e., the "top down" and the
"bottom up" approach?
a) Difficulties in the Allocation of the Issues
First of all, only some issues can clearly be allocated to either the "private interest" or
the "public interest" role of the Supreme Court. A clear allocation to the "public interest"
role is feasible for the possibility of a state official to lodge the appeal and continue it
even without the parties. Somewhat less clear, but still quite convincing is the allocation
of the admissibility of amici curiae to the "public interest" role. Where appeals to the
Supreme Court are limited to cases in which a Supreme Court decision is necessary to
ensure the uniform application of the law, to develop the law or to answer a question of
general importance, much depends on how these criteria are interpreted by the courts.
Regarding most other issues, like restrictions on the admissibility of the appeal with
regard to the value in dispute, neither an unequivocal deduction from a pre-established
role of the Supreme Court nor an unambiguous interpretation which could help
determine the role of the Supreme Court is possible. In the light of the uncertainties in
answering the classic question which have been described before, both of the two classic
approaches should be used with caution.
b) Difficulties in the Combination of the Issues
Not only is it difficult to allocate many of the relevant issues to a distinct role of the
Supreme Court, but also the combination of the issues, once allocated, is anything but
easy. By combination is meant here the relative weight of these issues. The relative
weight, in turn, plays a role both for the "top down" and the "bottom up" approach. As
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regards the "top down" approach, legislatures and reform commissions may be required
to allow, with respect to certain procedural issues, exceptions or deviations from what
would follow from a clear-cut deduction from the pre-established role of the Supreme
Court. This raises the question how many exceptions can be admitted without betraying
their pre-established definition of the Supreme Court’s role. Under the "bottomup"
approach, the weighting problem is even more acute, as a set of – most probably –
non-uniform answers must somehow be added up to draw a conclusion for the
determination of the role of the Supreme Court.
Thus, both approaches make it necessary to assign a relative weight to the individual
issues. Even if all issues are weighted equally, this is based on a value assessment from
which subjective elements cannot be completely eliminated. The necessity of a value
assessment is nothing bad as such, and can hardly be avoided in a social science like the
law. However, it should be transparent. Such transparency is typically lacking once the
result is expressed in seemingly objective numbers.61
IV. General Analysis
The foregoing discussion of the classic question and the classic approaches should have
paved the way for a more general analysis, an analysis in which some of our earlier
thoughts will reappear.
1. Constitutional Background
The Supreme Court is a public institution. Therefore, its role involves general questions
of the delimitation of the various institutions and branches of state powers, questions
which are governed by constitutional law. From a constitutional point of view, the
"private interest" role of the Supreme Court, i.e., the defense of individual rights of the
parties, fits perfectly with the judiciary’s role in the traditional concept of separation of
powers. In contrast, the "public interest" role of the Supreme Court, especially insofar as
it encompasses the power to develop the law, may conflict with the idea of a separation
between the judiciary and the legislature. According to the traditional concept of
separation of powers, the courts’ role is the application of the law, while it is the role of
the legislature to create the law.62
However, a clear-cut separation between the two powers has never been successful. This
is obvious in common law countries with their case law,63 but is also true for civil law
countries with codified law. The original idea of the Prussian General Land Law of 1794
that a court which discovers a question on which the written law was silent or unclear
had to submit this question to a legislative committee64 – an idea which was in a
moderated form repeated by the French "droit intermédiaire" by the institution of the
"référé législatif"65 and was also practiced in other countries for a while66 – has always
been abolished after some time for reasons of impracticability.67 Today, the idea that
judges may only apply the law has mostly been abandoned.68 It follows that a "public
interest" role of the Supreme Court cannot be considered a violation of the separation of
powers; the legislature must, of course, remain vigilant and willing to correct a
jurisprudence with which it does not agree.
2. Parameters for the Implementation
As the principle of the separation of powers as understood today sets no precise limits to
a "public interest" role of the Supreme Court and neither the definition of what is "public
interest" and "private interest" nor the allocation and combination of the relevant
procedural issues are unequivocal, every legal system and every generation must decide
on the features of its procedural law that define the role of its Supreme Court. This
decision must be taken according to the needs, culture and resources of the respective
society. All that can be done here is to mention a few parameters for the
implementation. First, the role of the Supreme Court depends on the activism of the
legislature.69 The less active the legislature, the more important is a role of the Supreme
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Court which goes beyond the individual case and provides guidance and uniform
treatment with regard to questions on which there is no codified law. This is particularly
true in today’s world with its numerous mass phenomena which can hardly all be taken
into account by the legislature, but deserve a uniform legal treatment and for this reason
should not be dealt with only on a case by case basis, leaving it to the parties whether or
not a precedent will emerge. Second, even where the legislature is active, there may be
a need for a "public interest" Supreme Court if the citizens do not trust in the
legislature’s independence from individual interest of powerful groups and the Supreme
Court is empowered to constitutional review of the legislation. Third, a strong role of the
Supreme Court in ensuring the uniform application of the law is more important where
lower courts do not respect codified law or relevant precedents, be they legally binding
or "persuasive authorities".70 Thus, where the judges in lower courts lack legal education
or access to legal literature and case law, where they are just not willing to take the
necessary efforts or where they have a propensity to openly oppose to the law in force,71
a strong "public interest" role of the Supreme Court is indispensable.
3. Risks of a Too Abstract Approach
The discussion of the two classic approaches has shown that one should not define the
role of the Supreme Court in a too abstract way. This is particularly true for the
legislature or a reform commission. First, our discussion of the classical question has
shown that the "private interest" role and the "public interest" role are by no means
distinct, black and white alternatives and that there is not even a continuum ranging
from black to white, but rather a matrix with overlapping shades of colors. However,
those who pre-establish the role of the Supreme Court typically use either the black and
white distinction or a very rough continuum model. It is more than doubtful whether one
can make correct deductions from such an imprecise starting point. Second, the
difficulties in the allocation of the issues have shown that deductive reasoning has its
limits, as many questions simply cannot be answered by way of deduction. Third, and
most important, it is always dangerous to adhere to an abstract idea without admitting
exceptions. As an example, even in a legal system in which the legislature is active and
solves many questions and in which courts give due attention to legal literature and
precedents even of other lower courts, it may be judicious to restrict the possibility of
terminating an appeal to the Supreme Court if economically strong players develop a
practice to avoid potentially disadvantageous Supreme Court decisions by buying
themselves out in those few cases which are litigated up the Supreme Court level. This
is, at least, the idea of the German legislature which – as mentioned above – recently
introduced such restrictions.
V. Conclusion
The role of the Supreme Court has often been discussed, and most discussions ask the
classic question of whether the Supreme Court serves not only the private interest of the
parties, but also the public interest, in other words whether the Supreme Court has a
role that goes beyond the individual case. It is sensible to ask this question; however,
one should bear in mind that the distinction between "public interest" and "private
interest" is not as clear as it may seem at the outset. In particular, "private interest" and
"public interest" are not distinct alternatives; at a closer look, they are not even the
endpoints of a continuum, but there is a complex relationship between the various
purposes Supreme Courts serve.
For any discussion of the role of the Supreme Court, there are two classic approaches: a
"top down" and a "bottom up" approach. The "top down" approach consists in first
establishing the role of the Supreme Court in an abstract way and then deducing
answers to how individual procedural issues should be dealt with. The "bottom up"
approach tries to determine the role of a particular Supreme Court from the relevant
procedural issues. Again, these approaches are sensible, but there exist inherent
difficulties with regard to the allocationof many procedural issues and their weighting.
On a general level, each legal system has a broad latitude in defining the role of its
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Supreme Court, and should consciously make use of this latitude with due regard to its
needs, culture and resources. As Oliver Wendell Holmes, Jr. put it: "The life of the law
had not been logic: it has been experience".72
1 On him, see Neil Andrews, John Anthony Jolowicz (1926-2012), (2012) 4 European
Business Law Review 455-460.
2 John Anthony Jolowicz, The Role of the Supreme Court at the National and
International Level, a General Report, in: Pelaya Yessiou-Faltsi (ed.), The Role of the
Supreme Court at the National and International Level. Reports for the Thessaloniki
International Colloquium (21-25 May 1997), Thessaloniki: Sakkoulas Publications 1998,
p. 37-63.
3 Rolf Stürner; Robert Schumacher, The Role of the Supreme Courts at the National and
International Level: Report on Germany, Austria, Switzerland and Hungary, in: Pelaya
Yessiou-Faltsi (ed.), The Role of the Supreme Court at the National and International
Level. Reports for the Thessaloniki International Colloquium (21-25 May 1997),
Thessaloniki: Sakkoulas Publications 1998, p. 171-222.
4 For a discussion, see, e.g., German Federal Constitutional Court (BVerfG), Official
Reporter (BVerfGE) 49, 148, 159; Horst-Eberhard Henke, Die Tatfrage, Berlin/Munich:
Duncker/Humblot 1966, p. 191; Artur May, Die Revision, Cologne et al: Heymanns 1995,
mn. 38 et seq.; cf. also Jacques Boré; Louis Boré, Cour de cassation, Dalloz Répertoire
de procédure civile, septembre 1998, n. 173-174.
5 Jolowicz, supra note 2, at 39 et seq.; Michal Bobek, Quantity or Quality? Re-Assessing
the Role of the Supreme Jurisdictions in Central Europe, EUI Working Paper LAW No.
2007/36, San Domenico di Fiesole 2007, p. 6-8 (also published in 57 Am. J. Comp. L. 33
[2009]).
6 Cf. Carl Hahn (ed.), Die Gesammten Materialien zur Civilprozeßordnung, vol. 1, Berlin:
R. v. Decker 1880, p. 364; Peter Arens, Die Befugnis des Revisionsgerichts zur
Entscheidung in der Sache selbst, AcP 161 (1962), 177, 179-180; Fritz Baur, Die dritte
Instanz im künftigen Zivilprozeß, Zeitschrift für Zivilprozess (ZZP) 71 (1958), 161, 175,
183; Erich Schwinge, Grundlagen des Revisionsrechts, 1st ed., Bonn: Röhrscheid 1935,
2nd ed., Bonn: Emil Semmel Verlag 1960, p. 21 et seq., 26 et seq., 73; cf. Peter
Gottwald, Die Revisionsinstanz als Tatsacheninstanz, Berlin: Duncker eamp; Humblot
1975, p. 82 et seq.
7 Cf. infra sub III.1.c)aa).
8 Cf., inter alia, Hans Arnold, Die Neuordnung des Zugangs zum Bundesgerichtshof in
Zivilsachen, Juristische Rundschau (JR) 1975, 485; Per Henrik Lindblom, The Role of the
Supreme Courts in Scandinavia, 39 Scandinavian Stud. L. 325, 337 (2000) [edited
version of the regional report to the 1997 IAPL conference mentioned in the
introduction]; May, supra note 4, at mn. 45 et seq.; Walter H. Rechberger;
Daphne-Ariane Simotta, Zivilprozessrecht, 8th ed., Vienna: Manz 2010, mn. 1037;
Michele Taruffo, Le funzioni delle corte supremi. Cenni generali, in: Daniel Mitidiero;
Guilherme Rizzo Amaral (coords.)/Maria Angélica Echer Ferreira Feijó (org.), Processo
Civil. Etudios em Homenagem ao Professor Doutor Carlos Alberto Alvaro de Oliveira, São
Paulo: atlas 2012, p. 341, at 345-346.
9 See, e.g., Nina Dethloff, Zugang zur Revisionsinstanz, Zeitschrift für Rechtspolitik
(ZRP) 2000, 428, 430; Leo Rosenberg/Karl Heinz Schwab/Peter Gottwald,
Zivilprozessrecht, 17th ed., Munich: C.H. Beck 2010, § 134 mn. 22; see also Bobek,
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supra note 5, at. 6; Lindblom, supra note 8, at 334.
10 See, e.g., BVerfGE 54, 277 = NJW 1981, 39, 41 (pointing out that appeals serve not
only the public interest but also the private interest in obtaining justice in the individual
case); Dethloff, supra note 9, at 428-429; see also Jolowicz, supra note 2, at 41 et seq.;
Lindblom, supra note 8, at 340-343 (expressing some doubts); Elisabetta Silvestri, Corti
supreme europee: accesso, filtri e selezione, in: Centro Studi Giuridici e Politici dell
Regione Umbria (ed.), Le Corti Supreme, Atti del Convegno, Perugia, 5-6-maggio 2000,
Milano: Giuffrè 2001, p. 105 et seq.; Taruffo, supra note 8, at 345 et seq.; for a very
general discussion, see Karl Thiere, Die Wahrung überindividueller Interessen im
Zivilprozeß, Bielefeld: Gieseking 1980, p. 24 et seq.
11 Daniel Mitidiero, Cortes Superiores e Cortes Supremas. Do Controle à Interpretação,
da Jurisprudência ao Precedente, São Paulo: Ed. RT, 2013, p. 11, 33 et seq.
12 Mitidiero, supra note 11, passim.
13 See, e.g., Bruno Rimmelspacher, Zugangsvoraussetzungen zum Rechtsmittelgericht,
in: Peter Gottwald; Herbert Roth (eds.), Festschrift für Ekkehard Schumann, Tübingen:
Mohr Siebeck 2001, p. 327, 331, 342-348; Peter Lames, Rechtsfortbildung als
Prozeßzweck, Tübingen: Mohr Siebeck 1993, p. 133-134; Rosenberg et al., supra note 9,
at mn. 22; Hannes Unberath, Der Zweck der Rechtsmittel nach der ZPO-Reform –
Theorie und Praxis, ZZP 120 (2007), 323, 332-333; Lindblom, supra note 8, at 343 et
seq.; very general Thiere, supra note 10, p. 28 et seq.
14 Mitidiero, supra note 11, at 11-12, 53 et seq.
15 See, e.g., Daniel Mitidiero, Fundamentação e Precedente: Dois Discursos a Partir da
Decisão Judicial, in: Daniel Mitidiero; Guilherme Rizzo Amaral (coords.)/Maria Angélica
Echer Ferreira Feijó (org.), Processo Civil. Estudos em Homenagem ao Professor Doutor
Carlos Alberto Alvaro de Oliveira, São Paulo: Atlas 2012, p. 85, 91; Luiz Guilherme
Marinoni, O princípio da segurança dos atos jurisdicionais, in: id., p. 309 et seq.
16 Cf. OLG Koblenz, NJW 2003, 2100, 2102 (emphasizing that there was an inherent
connection between "public interest" purposes of the appeal to the Supreme Court and
the "private interest" in having access to the court).
17 Art. 7 sentence 1 of the Universal Declaration of Human Rights of 10 December 1948:
"All are equal before the law (…)"; Art. 24 sentence 1 of the Convenção Americana de
Direitos Humanos de San José de Costa Rica of 22 November 1969: "Todas as pessoas
são iguais perante a lei (…)". See also, inter alia, Rupert Cross; J. W. Harris, Precedent
in English Law, 4th ed., Oxford: Clarendon Press 2004, p. 3; Mitidiero, supra note 15, at
92.
18 Gerhard Leibholz, Die Gleichheit vor dem Gesetz, 2nd ed., Munich/Berlin: C.H. Beck
1959, p 115 et seq., 216 et seq.; the subjective character is negated by Georg Jellinek,
System der subjektiven öffentlichen Rechte, 2nd ed., Tübingen: Mohr Siebeck 1905, p.
72, 97 et seq. For details of the German concept, see, e.g., Eckart Klein, Federal
Republic of Germany, in: Thijmen Koopmans (ed.), Constitutional Protection of Equality,
Leyden: Brill 1975, p. 69, 104 et seq.
19 Cf. Lindblom, supra note 8, at 341; Dennis J.C. Owens, Second and Third Chances on
Appeal, in: John G. Koeltl; John Kiernan (eds.), The Litigation Manual, Special Problems
and Appeals, Chicago: American Bar Association 1999, p. 165, 166-167.
20 Cf. once more Lindblom, supra note 8, at 340; Owens, supra note 19, at 165.
21 See also Wendt Nasall, Irrwege. Wege. – Die Rechtsmittelzulassung durch den BGH,
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NJW 2003, 1345, 1347 et seq. (with strong criticism on some decisions of the German
Federal Supreme Court which seemed to deny a public interest in the correct application
of the law).
22 Cf. supra sub II.2.a)aa).
23 Cf., e.g., Dethloff, supra note 9, at 431; Lindblom, supra note 8, at 339-340, 351 et
seq.; see also Hanns Prütting, Die Zulassung der Revision, Cologne: Heymanns 1977, p.
93 (emphasizing that not all aspects of appeals proceedings must be in line with one and
the same purpose).
24 Cf., e.g., Curt W. Hergenröder, Zivilprozessuale Grundlagen richterlicher
Rechtsfortbildung, Tübingen: Mohr Siebeck, 1995, p. 79 (claimingthat it was possible to
conclude from the restrictions of access to the Supreme Court on its purpose, but not
the other way round).
25 Text accompanying note 7.
26 For France, Art. 17 Loi n. 67-523 of 3 July 1967 relative à la Cour de cassation; for
Italy, Art. 363 Codice di Procedura Civile; for Spain, Art. 490-493 Ley de Enjuiciamiento
Civil; for Belgium Art. 1089 et seq. Code Judiciaire; for Greece, Art. 557 Civil Procedure
Code; see, e.g., Frédérique Ferrand, Cassation française et Révision allemande, Paris
1993, mn. 36; Pierre Julien; Natalie Fricero, Droit judiciaire privé, 3rd ed., Paris: Presses
Universitaires de France 2009, n. 763; Serge Guinchard; Cécile Chainais; Frédérique
Ferrand, Procédure civile, 31st ed., Paris: Dalloz-Sirey 2012, mn. 1788; Dimitrios
Tsikrikas, Kassation und Revision im europäischen Vergleich, Zeitschrift für Zivilprozess
International (ZZPInt) 4 (1999), 171, 174, 177-178, 185; Dimitrios Tsikrikas, Die
Entstehung und Entwicklung des griechischen Zivilprozessrechts, ZZPInt 16 (2011), 111,
123-124. For the Czech Republic, see Bobek, supra note 5, at 12.
27 Cf. SS 7(2) Nr. 2, 70(1) of the Act on the Procedure in Family Law Cases and Cases
of Non-Contentious Jurisdiction ("Gesetz über das Verfahren in Familiensachen und in
den Angelegenheiten der freiwilligen Gerichtsbarkeit", FamFG); see also Fritz Baur, Zur
"Beschwer" im Rechtsmittelverfahren des Zivilprozesses, in: Leo Rosenberg; Karl Heinz
Schwab (eds.), Festschrift für Friedrich Lent, Munich: C.H. Beck 1957, 1, 6-7.
28 For an in-depth discussion, see, e.g., Thiere, supra note 10, p. 213 et seq.
29 See, e.g., Philippe Gérard; Hakim Boularbah; François van Drooghenboeck, Pourvoi
en cassation en matière civile, Bruxelles: Emile Bruylant 2012, mn. 792.
30 Cf. generally Rimmelspacher, supra note 13, at 327.
31 Cf. Schwinge, supra note 6, at 33 (pointing out that the more generously access to
the Supreme Court is granted, the less "force" its decisions have to unify and develop
the law); see also Bobek, supra note 5, at 1, 7; Frédérique Ferrand, Justizentlastung in
Frankreich, ZZPInt 2 (1997), 43, 65.
32 In Scandinavian countries, Supreme Courts can try questions of law and questions of
fact, but normally cannot hear new evidence; see Lindblom, supra note 8, at 328.
33 See, e.g., for Austria SS 502, 504(2) of the Austrian Code of Civil Procedure
("Zivilprozessordnung", ZPO); for Germany § 545(1) of the German Code of Civil
Procedure ("Zivilprozessordnung", ZPO); for France; Julien; Fricero, supra note 26, at n.
756; Guinchard et al., supra note 26, at mn. 1788; in Switzerland, the Court may also
correct "obvious" errors in the determination of the facts, see Art. 320 of the new Swiss
Code of Civil Procedure ("Zivilprozessordnung", ZPO) and Art. 95, 97 Swiss Act on the
Federal Court ("Bundesgerichtsgesetz", BGG); as a matter of principle, the last instance
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court may not admit new claims, assertions of facts and means of evidence, Art. 326
ZPO, however, the exact scope is unclear, cf. Laura Jacquemoud-Rossari, Les voies de
recours, in: Bénédict Foex; Nicolas Jeandin, Le Code de Procédure Civile, Aspects choisis,
Geneva et al: Schulthess 2011, p. 126; David Hofmann; Christian Lüscher, Le Code de
Procédure Civile, Bern: Stämpfli 2009, p. 201; Andreas Lienhard, Die materielle
Prozessleitung der Schweizerischen Zivilprozessordnung, Zurich/St. Gall: Dike 2013, mn.
734 et seq.; Karl Spühler, Eine Neuentwicklung von europäischer Bedeutung – Die
Einheitsbeschwerde in Zivilsachen ans Schweizerische Bundesgericht, ZZPInt 6 (2001),
255, 260.
34 Lindblom, supra note 8, at 345; May, supra note 4, at mn. 42, 51.
35 See, e.g., Horst-Eberhard Henke, Rechtsfrage oder Tatfrage – eine Frage ohne
Antwort?, ZZP 81 (1968), 196, 217 et seq.; Georg Mitsopoulos, Die Unterscheidung
zwischen Tatfrage und Rechtsfrage im Kassationsverfahren, ZZP 81 (1968), 251, 253 et
seq.; Adolf Wach, Der Entwurf einer deutschen Civilprozeßordnung, Kritische
Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 15 (1873), 88, 92 et seq.
36 See, e.g., Schwinge, supra note 6, at 51, 136; Kurt Kuchinke, Grenzen der
Nachprüfbarkeit tatrichterlicher Würdigung und Feststellungen in der Revisionsinstanz,
Bielefeld: Gieseking 1964, p. 107 et seq., 126 et seq., 132 et seq.
37 Cf. Ferrand, supra note 26, at 135 et seq.; Gottwald, supra note 6, passim;
Hergenröder, supra note 24, at 371 et seq.; Geoffrey Hazard, Jr.; John Leubsdorf; Debra
Lyn Bassett, Civil Procedure, 6th ed., New York: Foundation Press 2011, p. 703 et seq.;
Isaak Meier, Schweizerisches Zivilprozessrecht, Zurich et al: Schulthess 2010, p. 487.
38 See, e.g., for Switzerland Art. 74(1) BGG.
39 See, e.g., for Germany § 26 Nr. 8 of the Act introducing the Civil Procedure Code
("Gesetz betreffend die Einführung der Zivilprozessordnung", EGZPO).
40 May, supra note 4, at mn. 42.
41 S 502(1) of the Austrian Code of Civil Procedure ("Zivilprozessordnung", ZPO); §
543(2) sentence 1 of the German ZPO.
42 Cf. also Lindblom, supra note 8, at 339-340; May, supra note 4, at mn. 43, 51;
Taruffo, supra note 8, at 347-348.
43 Cf. Nikolaus Stackmann, Fünf Jahre reformiertes Rechtsmittelverfahren im
Zivilprozess, NJW 2008, 9, 13.
44 Cf. Cornelie von Gierke; Frank Seiler, Revisionszulassung und
Rechtsbeschwerdezulässigkeit – Tendenzen in der neueren Rechtsprechung des BGH,
NJW 2004, 1497, 1500-1501; see also Bobek, supra note 5, at 10, 13-14.
45 On this question, see, e.g., Dethloff, supra note 9, at 429, 432; Rimmelspacher,
supra note 13, at 350; Tsikrikas, supra note 26, at 204.
46 Hazard et al, supra note 37, at 692; Judith Hayes, Certiorari Review of District Court
o Appeal Decisions by the Supreme Court of Florida, 28 U. Miami L. Rev. 952, 953
(1974).
47 Neil Andrews, The United Kingdom’s Supreme Court: Reflections on the Role of the
British Nation’s Highest Tribunal, ZZPInt 14 (2009), 33, 39.
48 Cf. Rules of the Supreme Court of the United States, adopted April 19, 2013 and
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effective July 1, 2013, Rule 10 – Considerations Governing Review on Certiorari; for
Florida Hayes, supra note 46, at 953; generally Taruffo, supra note 8, at 347, 349.
49 Cf. § 565 sentence 2 ZPO (effective date 2014), requiring consent in case of a
withdrawal by the appellant, and § 555(3) ZPO (effective date 2014), requiring in case
of an acknowledgment of the appellee a special application of the appellant for a
judgment based exclusively on the acknowledgment.
50 Cf. Owens, supra note 19, at 166 (noting that judges, being human, are displeased to
see their decisions nullified).
51 Ekkehard Schumann, Bundesverfassungsgericht, Grundgesetz und Zivilprozeß, ZZP
96 (1983), 137, 195-196 (mentioning the divergent purposes of a "public interest"
oriented Supreme Court and a constitutional court exercising a control exclusively in the
private interest of the appeallant).
52 Cf. ECHR (GC), Judgment of 14 December 2006, Markovic v. Italy, No. 1398/03,
ECHR 2006-XIV, 177, 219, § 109; Paul Lemmens, Guidance by Supreme Courts to Lower
Courts on the Requirements of the ECHR, in: Council of Europe (ed.), Reforming the
European Convention on Human Rights: A Work in Progress, Strasbourg: Council of
Europe Publishing 2009, 304, 305 et seq.
53 See, e.g., Cassio Scarpinella Bueno, Amicus curiae e a evolução do direito processual
civil brasileiro, in: Aluisio Gonçalves de Castro Mendes; Teresa Arruda Alvim Wambier
(eds.), O processo em perspectiva. Homenagem a José Carlos Barbosa Moreira, São
Paulo: Ed. RT, 2013, p. 105, 108; Cassio Scarpinella Bueno, Amicus Curiae no processo
civil brasileiro: um terceiro enigmático, 3rd ed., São Paulo: Saraiva, 2012, p. 116 et seq.
54 Cf. Antonio do Passo Cabral, Der amicus curiae und die alten Formen der Beteiligung
Dritter am Rechtsstreit. Neue Tendenzen nach brasilianischemRecht, in: Reinhold
Geimer; Rolf A. Schütze (eds.), Recht ohne Grenzen. Festschrift für Athanassios Kaissis,
Munich: Sellier, 2012, p. 71, 75-76.
55 Jolowicz, supra note 2, at 52; borrowing from Jolowicz Bobek, supra note 5, at 5;
Lemmens, supra note 52, at 305; Taruffo, supra note 8, at 342; for the Czech Republic
Petr Chmelíček, Einführung in das Tschechische Zivilprozessrecht, ZZPInt 7 (2002), 429,
445-446.
56 See, e.g., Meier, supra note 37, p. 453; Daniel Willisegger, Grundstruktur des
Zivilprozesses, Zurich et al: Schulthess 2012, p. 360.
57 Jolowicz, supra note 2, at 51; again borrowing from Jolowicz Bobek, supra note 5, at
5; Lemmens, supra note 52, at 305.
58 Cf. Lindblom, supra note 8, at 328.
59 Jolowicz, supra note 2, at 54; once more borrowing from Jolowicz Bobek, supra note
5, at 5-6; Lemmens, supra note 52, at 305; Taruffo, supra note 8, at 345-346; for a
presentation, see, e.g., Arens, supra note 6, passim.
60 Comp. SS 542-566 and SS 578-591 of the German ZPO (calling the appeal to the
Federal Supreme Court "Revision" and the appeal attacking judgments which are res
judicata "Wiederaufnahme") and SS 502-513 and SS 529-547 of the Austrian ZPO
(calling the appeal to the Highest Court "Revision" and the appeal attacking res judicata
"Nichtigkeitsklage" or "Wiederaufnahmeklage") with Art. 319-327 and Art. 328-333 of
the Swiss ZPO (calling the former appeal "Beschwerde" and the latter "Revision").
61 Cf. Christoph A. Kern, Die Doing-Business-Reports der Weltbank – fragwürdige
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Quantifizierung rechtlicher Qualität?, Juristenzeitung (JZ) 2009, 498, 499, 501.
62 See, e.g., Charles Louis de Secondat Montesquieu, De l’esprit des loix, Geneva:
Barillot eamp; Fils 1748, p. 256 ("Mais les juges de la nation ne sont (…) que la bouche
qui prononce les paroles de la Loi: des Etres inanimés qui n’en peuvent modérer ni la
force ni la rigueur"); Carl Gottlieb Svarez, Inwiefern können und müssen Gesetze kurz
sein? (Vortrag vor der Mittwochsgesellschaft 1788), in: Hermann Conrad; Gerd
Kleinheyer (eds.), Vorträge über Recht und Staat, Cologne eamp; Opladen:
Westdeutscher Verlag 1960, S. 627, 628; William Blackstone, Commentaries on the
Laws of England, Introduction, Oxford: Clarendon Press 1765, p. 69 (calling the judges
the "living oracles"); Alexander Hamilton, writing under the pseudonym Publius, The
Federalist No. 78, 14 June 1788 (demanding that judges exercise judgment, not will);
Jörn Ipsen, Richterrecht und Verfassung, Berlin: Duncker eamp; Humblot 1975, p. 62 et
seq., 188; John G. Roberts, Jr., Confirmation Hearing on the Nomination of John G.
Roberts, Jr., to be Chief Justice of the United States: Hearing before the Committee on
the Judiciary, 109th Cong. 55 (2005) (stating that "[j]udges are like umpires. Umpires
don’t make the rules, they apply them. The role of an umpire and a judge is critical.
They make sure everybody plays by the rules, but it is a limited rule. Nobody ever went
to a ball game to see the umpire").
63 Cf., e.g., Andrews, supra note 47, at 41.
64 S 47 of the Introduction to the Prussian General Land Law: "Findet der Richter den
eigentlichen Sinn des Gesetzes zweifelhaft, so muß er, ohne die prozeßführenden
Parteyen zu benennen, seine Zweifel der Gesetzkommission anzeigen, und auf deren
Beurteilung antragen". See also Prussian General Courts Code of 1793, 1st Part, 13th
Title, § 32.
65 Art. 12 Act of 16 August 1790; Art. 21 Act of 27 November 1790; see, e.g., Paolo
Alvazzi del Frate, Aux origines du référé législatif: interprétation et jurisprudence dans
les cahiers de doléances de 1789, Revue historique de droit français et étranger LXXXVI
(2008), 2, 253 et seq.; Yves-Louis Hufteau, Le référé législatif et les pouvoirs du juge
dans le silence de la loi, Paris: Presses Universitaires de France 1965; Marinoni, supra
note 15, at 316; Matthias Miersch, Der sogenannte référé législatif. Eine Untersuchung
zum Verhältnis Gesetzgeber, Gesetz und Richteramt seit dem 18. Jahrhundert,
Baden-Baden: Nomos 2000.
66 For Austria, see Gernot Kocher, Höchstgerichtsbarkeit und Privatrechtskodifikation:
die Oberste Justizstelle und das allgemeine Privatrecht in Österreich von 1749-1811,
Vienna/Cologne/Graz: Böhlau 1979, p. 113 et seq.; Andreas Vonkilch, Das
Intertemporale Privatrecht, Vienna/New York: Springer 1999, p. 345 et seq.
67 See, e.g., Ulrike Müßig, Geschichte des Richterrechts und der Präjudizienbindung auf
dem europäischen Kontinent, Zeitschrift für Neuere Rechtsgeschichte 28 (2006), 79, 96
et seq.
68 For a discussion, see, e.g., Marinoni, supra note 15, at 312, 332 et seq.; Horst
Konzen, Gesetzentwurf und Revisionsurteil, in: Dieter Wilke (ed.), Festschrift zum
125jährigen Bestehen der Juristischen Gesellschaft zu Berlin, Berlin/New York: de
Gruyter 1984, p. 349, 363 et seq.
69 Cf. Lindblom, supra note 8, at 336.
70 On the respect for precedents, see, e.g., Wolfgang Brehm, Rechtsfortbildungszweck
des Zivilprozesses, in: Peter Gottwald; Herbert Roth (eds.), Festschrift für Ekkehard
Schumann, Tübingen: Mohr Siebeck 2001, p. 57, 63-65; Christoph A. Kern, The Respect
for Court Decisions in German Law, in: Aluisio Gonçalves de Castro Mendes; Teresa
Arruda Alvim Wambier (eds.), O processo em perspectiva. Homenagem a José Carlos
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Barbosa Moreira, São Paulo: Ed. RT, 2013, p. 131 et seq.
71 Cf. Marinoni, supra note 15, at 316, 318.
72 Oliver Wendell Holmes Jr., The Common Law, Boston: Little, Brown eamp; Co. 1881,
p. 1.
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