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Assuming that the degree of discretion granted to judges was the main distinguishing feature between common and civil law until the 19th century, we argue that constraining judicial discretion was instrumental in protecting freedom of contract and developing the market order in civil law. We test this hypothesis by analyzing the history of Western law. In England, a unique institutional balance between the Crown and the Parliament guaranteed private property and prompted the gradual evolution towards a legal framework that facilitated market relationships, a process that was supported by the English judiciary. On the Continent, however, legal constraints on the market were suppressed in a top-down fashion by the founders of the liberal state, often against the will of the incumbent judiciary. Constraining judicial discretion there was essential for enforcing freedom of contract and establishing the legal order of the market economy. In line with this evidence, our selection hypothesis casts doubts on the normative interpretation of empirical results that proclaim the superiority of one legal system over another, disregarding the local conditions and institutional interdependencies on which each legal system was grounded.

This article examines, on the one hand, the relationship between methods of legal interpretation used by judges, and on the other hand, the legitimacy of judicial discretion and the impact of judicial decisions upon structural social antagonisms (known as 'the political'). The paper explores these matters by means of a case study, namely, the judicial activity of the European Court of Justice ('Court'). The article posits a direct correlation between the method of interpretation chosen by the court, and the legitimacy of its discretion as well as the level of decision-making with regard to the political. Accordingly, if the Court chooses a linguistic method of interpretation, adhering to the objective will of the treaty-makers and legislators, the legitimacy of a decision has more weight, and the extent of judicial decision-making in the field of the political is correspondingly lower. However, this is not possible due to the general features of legal language, and especially specific features of the language used in European case law since the judge is unable to decide cases solely on the basis of the language of legal texts. This creates a need for the judge to arrive at a decision, which must be legitimised on the basis of the axiological choices made, and interests protected. To this end, a tentative normative theory of interpretation for the Court is proposed.

Italy Since 1989 provides the first in-depth, fully documented account in English of the extraordinary last eleven years in Italian politics. Bufacchi and Burgess take the transition to a new Italy as their point of departure, and conduct a guided tour through the massive changes that the country has recently undergone with the collapse of the party-state, attempting to explain as well as understand events along the way. The authors provide extensive coverage of the judicial uncovering of bribery and corruption, and the journey culminates in an entirely original examination of the general election of April 1996. This revised edition includes a fresh introductory chapter, bringing up to date the chronicle of events

Mr. Justice Frankfurter recently said that the number of cases coming before the Supreme Court of the United States which were not based on statutes was "reduced almost to zero." This growth of statutory as against pure case law is, of course, not confined to the United States. It inevitably accompanies the social welfare state and the increase in government which every modern industrial society has experienced and which two world wars, with their need for the total mobilization of resources, have further stimulated. Apart from these sociological factors which affect states with the most different legal systems, it is still customary to contrast the "code-minded" continental systems with the "case-minded" tradition of Anglo-American jurisprudence. Insofar as it is meant to indicate a parallel contrast in the judicial approach to statutes, this is in many ways a false antithesis. It is quite true that the history of the common law systems has encouraged an empirical and inductive approach to legal problems, a disinclination to think in terms of abstract rights and duties rather than of concrete remedies, a judicial distrust of parliamentary encroachments upon the sphere of the "lawyer's law." As will be shown, this attitude still powerfully influences the judicial approach to statutes in contemporary England. Insofar as American'law has taken over the basic principles and approach of the common law, this may well be true of the United States too; but the fundamental difference is that the United States, like other countries inside and outside the common law system, likes a written constitution.

In the study of the constitution, courts and judicial behaviour, two distinct strands can be identified. First, the study of constitutional law, which in the 1920s was a paramount concern of the emergent political science discipline, had become by the 1960s a very marginal interest of Canadian political scientists. Although recent events have led to a revival of interest, still only a small handful of political scientists in the English or French-speaking branches of the discipline devote much of their scholarly attention to the law of the constitution. The study of judicial interpretation of the constitution has been almost completely preempted by legal academics. In the meantime, the empirical investigation of courts and judicial behaviour, a subject which in earlier years attracted the attention of neither lawyers nor political scientists, has been slowly emerging as a distinct field of interest for social scientists and empirically oriented legal scholars, although it remains very much at the margin of political science.

Among the various classes of legal documents which have become publicly available in China in recent years, few are more interesting than the growing body of reported decisions by courts and other institutions. Usually resulting, directly or indirectly, from litigation or some similar process, these interpretative rulings and decided cases have appeared in increasing numbers in the nine years following the first publication of the Supreme People's Court's own gazette. Since then a number of general collections of judicial interpretations and abstracts of court decisions have been brought out, some of which pre-date the Cultural Revolution. The Supreme People's Court now supplements its gazette with periodical collections of reports of cases, and more specialized collections of interpretations and cases have been published to meet various specific needs, academic and professional.Access to material of this kind on a larger scale than hitherto sheds light on various aspects of the Chinese legal system itself which for foreign observers were previously obscure. Moreover, although most of the cases and decisions which are published emanate from the higher levels of the legal hierarchy, they bring the reader closer both to the practical workings of the legal system and to the thought processes which guide it.The question which inevitably arises is whether these newly available materials should be regarded as providing more than just a heightened awareness of the dynamics of Chinese society and its legal system. Outside China, the study of Chinese law is increasingly regarded not merely as a discipline for the description and analysis of a specialized category of Chinese institutions, but more importantly as a source of detailed prescriptive norms of the kind expected from legal systems in the world as a whole.

In the article the essence of social protection of employees of the judicial system of Ukraine is analyzed. The legal nature of this category is studied. The specifics and content of scientific approaches to the interpretation of this phenomenon are described. The positive aspects of doctrinal interpretations are pointed out. The author's interpretation of social protection of employees of the judicial system of Ukraine is given. ; У статті проаналізовано сутність соціального захисту працівників судової системи України. Досліджено правову природу даної категорії. Охарактеризовано специфіку та зміст наукових підходів щодо тлумачення вказаного явища. Вказано на позитивні аспекти доктринальних трактувань. Наведено авторське тлумачення соціального захисту працівників судової системи України.

Is international law "irrelevant" to constitutional interpretation in the United States? How could that be? The arguments for categorical ignorance of international law in constitutional adjudication play on exaggerated fears: fear of foreign domination, fear of judicial activism, fear of the unknown. The claim of irrelevance depends on a false dichotomy between excluding international law fromjudicial consideration and allowing foreign institutions to control constitutional meaning. The more sensible inquiry would ask how international law has informed constitutional interpretation in the past, and how it should be used in the future.