Common law, droit civil: reflexion sur les outils du juge en bioéthique
Journal International de Bioéthique = International Journal of Bioethics 2006 March-June; 17(1-2): 95-102
Civilian and common law judges differ substantially in their approach to the resolution of issues concerning bioethics and health sciences. Whereas the civilian judge will first take into account the legislative source, his common law counterpart will most probably first look at judicial precedents for guidance. In both systems, however, the legislative drafting technique differs substantially and has a direct impact on judicial interpretation of the law. Both systems also differ in the way that judicial decisions are drafted and rendered. In the common law tradition, judges draft their own opinion, leaving the possibility of dissent which, in turn, helps to better illustrate contentious issues and may have an influence on social awareness of difficult problems. Finally, in bioethics, legislation should be preferred if only for a question of social legitimacy, since decisions are then taken by elected representatives. However, this type of legislation should be subject to periodical review to better adapt its rules to the evolution of science and society.
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