These two great families of law that reflects different processes of creating the law.The common law consists of the substantive law and procedural rules that are created by the judicial decisions made in the courts ;altough legislation may override such decisions , the legislation itself is subject to interpretations and refinements in the courts.The Romano-germanic Law is made mostly by the chosen legislative power(Parliament) and by any other state institution with this power given by a certain constitution and the courts has only the attribution to apply the written law and not to create it.
Its an odd thing with English common law at least... as you say, the very nature of a common law system is that Judges make laws, and in England this is so. Both Murder and Marital Rape are offences created entirely by Judges. Yet Judges in this jurisdiction cling to a belief that they do not make laws, only interpret the will of the sovereign parliament. No doubt 'tis part of the constitution fluff we've created to make a flexible system of government work. I'm not sure if American Judges wolud take the same view, but whereas in Britain, all law and all justice, whether it be English Law or Scots Law, stems from the Queen as sovereign, in the US, all laws stem from the Constitution and the US code flows from this. As there is a defined special document setting out what is, or is not, permitted, it follows that Judges have scope to be far more prescriptive than an English judge can. Afterall, an American judge has a definitive document to refer to. And yet, American Judges seem to be far more judicially creative than a modern English Judge would dare to be. Roe v Wade is a classic example of this.
I personally think, that best possible law family would be merging of the two. While R-G law is, at least in my country, nearly direct descendant of Napoleons Code Civil from 1804 and following ABGB 1811, more or less, current trend is to return to these rather casuistic laws, which I do not prefer at all. On one side, you know for sure, what you can do, cannot do, is / isnt punishable and so forth, but reaction of said system to any dynamic society changes can be rather slow, creating dangerous vacuum that has to be filled via interpretation of said §§, which kindly throws down the point, where you are sure about it all. Merging with Common law style of deciding cases would be very helpful, not directly using precedents for deciding, but giving judges far more flexibility and space for maneouvering in each case, to properly reflect the whole situation, social-economic state of society and trends in general. Questionable as it is though, since you need responsible and experienced people for this, and those are, especially here, more inclined to work for private sector, where the money is. =/
As an American I think fundamentally all laws and actions of government must be in line with the rules of the various federal and state Constitutions. I'm not opposed to the alteration of the constitution, they are living documents, simply that alterations must be made before things may be changed. That's why the Healthcare thing bothered me. It wasn't that socialized medicine was actually evil, but the plan was to simply ignore what the Constitution allows and not to challenge it (a fight they could not reasonably win in this case.) Essentially I think that the goal is to make clear concise laws which are fair but strictly inflexible and then for the jurors and judges to decide upon innocence or guilt based on the guidelines. For example if Premeditated Murder and Felony Murder carry a death sentence or a life sentence, guilt gives you the full penalty. "Twenty Five to Life" is ridiculous. Make the law 25 or Life. It's not up to the judge to determine the punishment, it's up to the jury to determine the guilt or innocence and the judge to oversee procedures. That's my opinion.
@ the Black Prince Ironically, the heyday of American common law as it's traditionally thought of (in the sense of judges largely inventing original doctrines like "money had & received") came in a period when the American judiciary was extremely deferential to the English courts. English cases like Winterbottom v. Wright are still taught in American law schools as part of the standard course of instruction, and they heavily influenced American legal thinking through at least the 1920's. The American experience with an extremely active US Supreme Court falls into a slightly different vein than what's generally though of as "common law" in the English tradition. The US Supreme Court was extremely active during the mid-20th century, but the court primarily saw itself as rectifying what it saw as injustices existing in different parts of the country at the time. It largely approached the problems by "constitutionalizing" them, in the sense that it would find some (usually fictive) constitutional basis for asserting that the status quo was illegal. Roe v. Wade is probably the best example of that approach. In other words, the approach of the Supreme Court during the mid-20th century was a "top-down" approach, in the sense that a single court acted as the decision maker for the rest of the country. By contrast, during the 19th century state courts were heavily influenced by English courts and other state courts, but not in the sense that any given case out of other courts would have been mandatory precedent. Ironically, the heavy-handed approach of the US Supreme Court (during the Lochner era and after) probably did more than anything else to bring about the end of the common law era. Most modern US courts are often needlessly deferential to the other branches of government (see, e.g. the Texas Supreme Court). In any case, the nuances of all of this go beyond my ability to discuss (especially given that I've only recently returned from a bar). Lawrence Friedman has a fantastic book on the history of American law (called "A History of American Law") that covers most of the development far better than I can, if you're interested. The link if you want it: http://books.google.com/books?id=7q4...page&q&f=false
Actually, I can't recommend the Friedman book enough - it's absolutely the best book on legal history I've ever read and one of the best history books I know at that.
