ABSTRACT
A legal system that starts out from fact and procedure is, in the absence of a university tradition at least, unlikely to be structured in terms of the norms applicable, such norms being trapped, of course, within the concrete facts of each precedent. On the continent things are, traditionally, very different in that the codes deal only with abstract norms arranged according to the institutional system of persons, things and obligations (cf Chapter 3 § 3(a)). In addition, the codes have an important ideological role: they represent a system of morality, legality and political will (lex, la loi) rolled into one and even if they have encouraged a legalistic and positivistic approach in the past the codes provide clear rules and principles. They are seen as a form of auctoritas (authority). In fact, few civilians believe today that codes act as axiomatic sources of private law, allowing the citizen to learn the law from legislation alone. Many of the abstract rules are simply empty of content. Legal practice and legal theory are just as important as sources of legal knowledge and, indeed, the civil law experience itself now indicates that statutory regulation is no obstacle to judicial lawmaking. From a comparative law viewpoint, differences in the theory of sources of law between common law and civil law are becoming more formal than real.97 The civilian emphasis is shifting to the casuistics of case law while, so some say, the Anglo-American law is becoming more constructivist.98
