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Ajani, Gianmaria --- "Legal Change and Economic Performance: An Assessment" [2010] ELECD 112; in Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim (eds), "New Directions in Comparative Law" (Edward Elgar Publishing, 2010)

Book Title: New Directions in Comparative Law

Editor(s): Bakardjieva Engelbrekt, Antonina; Nergelius, Joakim

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848443181

Section: Chapter 1

Section Title: Legal Change and Economic Performance: An Assessment

Author(s): Ajani, Gianmaria

Number of pages: 16

Extract:

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 proce-
dures: 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 empow-
ered 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 lawmak-
ing 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 assem-
blies.
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 ...