The author writes about the differences between English Law and the Civil Law. Ecuador is under the Civil Law System.
The common law system which is applied in England and Wales, and other jurisdictions (some former British colonies as the United States, Singapore, New Zealand, Pakistan, India, Canada, Australia, Belize, Hong Kong, Trinidad and Tobago, etc. ) is the application of the law based on previous decisions by judges (what is called doctrine of judicial precedent). Every case generates an evidence of what law is at a certain moment and it binds future decisions.
Common Law is a system quite different to Latin American countries (and most of European countries) , which are based on Civil “Roman Law system, deriving their laws from a Civil Code inspired in the principles of the Roman Code of Justinian. Under the Civil Law system, judges are limited to judge their cases according to what the written law says (or a contract), and their decisions only affect the parties in conflict and not third parties in future cases. In the Common Law system, the judge decision not only solves the present conflict, but it also affects future similar cases in certain aspects of the application of law.
Civil Law system judges almost always have to decide their judgments based on written law, so most of their activity is the interpretation on what the statute says or intends to say. This means that in the Civil Law system the statutory law is the source for decisions of the judiciary (the Parliament is the provider of the statutory law).
In a Common Law system, according to the doctrine of judicial precedent (stare decisis) the own decisions by the Judiciary is the source for their future decisions, and this is known as case law: finding the facts, finding the law, and applying the law to the facts, according to past cases. What has being decided in the past in a conflict rules the future for every person. That is the law.
Decisions of courts of appeals bind on lower court and on the own future decisions of the court of appeals. Decisions from lower courts are only persuasive.
In the Civil Law system, practice of law is based on what a Code or written law says. Written law includes the Constitution, Laws by the Parliament and Executive (Government) Regulations. Every previous judgment is only considered a supplementary reference for judges, and judicial precedent is only binding when it is reiterative and completes all requirements mentioned in written law. In the case of Ecuador the Constitution of the Republic enacted in 2008 ratified the National Court (formerly Supreme Court) the power to determine binding jurisprudence at a moment when at least three similar judgements have been taken. What is new in Ecuador is that the Constitutional Court was granted the power to have their judgements to have general binding effect.
In the countries of the Common Law world statutory law have been passed to ratify or modify the case law, guided by the principle of the Supremacy of Parliament and the separation of powers. Most of the statutes come from principles of law developed by the judges. In this extent is proper to say that in a common law system judges “make the law”. This was the case i.e. of the UK Marine Insurance Act 1905 inspired by common law principles based most in Lord Mansfield’s decisions. But after many years of long discussions Parliament agreed to modify essential principles including in said law with the Insurance Act 2015. Fundamental changes to case law were implemented.
In the case of the United Kingdom it is to consider that judges are restricted for case law application to the EU legislation which prevails. (The Treaties of the EU, the European Convention of Human Rights, EU Regulations with direct application in EU Countries, and also EU Directives, which have to be applied in form of local law by the EU countries). The big majority of the EU countries have a civil law background (as Germany, France, Italy, Spain, Sweden, Norway, etc.), and consequently the EU legislation follows the civil law format (written laws). Judges are also restricted to apply case law with the Statutes from the English Parliament. There is a trend that Statute law is increasing and if this continues, the case law may be replaced at least in most important issues. Examples of Statutes are the Commercial Agents (Council Directive) 1993 from the EU and the Misrepresentation Act 1967. For England the trend is more evident in Criminal law rather than commercial or civil law matters giving the importance of ruling in writing the interests of the society, and recognizing some independence to commercial issues. Europe itself is now being discussing the possibility of an European civil Code
In cases that are ruled by Statutes, judges are limited only to the interpretation of the written Law, and to this extent, they may decide their cases according to the Statute, and supplementary with the principle of stare decisis. Their judgments in both cases increases the case law. It is important also to note that not all facts can be considered in the Statutes nor in the Contracts, implied facts and implied law (also Statute) terms may be covered by judges. Past decisions from the judiciary brings wide knowledge of what the law is, so case law maintains its importance.
In conclusion, in the common law system, the judge can produce law and also to declare it by means of interpretation of previous judgments or a written law. While the English law is being increased by written statutes and EU regulations the role of the judge will be limited to the new legislation.