Beyond the Code and the Precedent: Damaska’s Two "Faces of Justice" and the Contemporary Legal Enterprise

By Glênio S. Guedes

The foundational schism separating the Civil Law and Common Law traditions—the distinction between codified statute and binding judicial precedent—is often treated as a matter of mere technique. Yet, as Mirjan Damaska brilliantly articulated in The Faces of Justice and State Authority, the true divergence lies in the contrasting ideal types of state authority and judicial structure each system embodies. Understanding this distinction is crucial for assessing the contemporary trends toward legal convergence and the pursuit of integrity within the modern justice system.

I. The Structural Duality: Hierarchy Versus Coordination

Damaska’s first dichotomy concerns the distribution of authority within the judicial branch, revealing fundamentally different conceptions of the judge’s role.

A. The Hierarchical Model (Classical Civil Law)

In the Romano-Germanic tradition, the judiciary is conceived as a vertical, bureaucratic hierarchy.

• The Bureaucrat Judge: The judge is primarily a career civil servant—a technical specialist recruited upon graduation and promoted through internal merit. Their paramount duty is the faithful application of legislative will, acting as the ultimate interpreter of the state's command.

• The Aim: The imperative is uniformity and predictability, ensuring that the state's rule of law is applied consistently across the polity. The legal process is, fundamentally, a formalized dossier-driven inquiry.

• Contemporary Context: This model faces pressure from the need for dynamism. While the judge remains a career functionary, the infusion of legal realism—and the practical necessity of managing mass litigation (e.g., as seen in the Brazilian Civil Procedure Code of 2015)—forces a move towards precedent-based systems, creating a "hierarchy of rules" that demands a structural integration of stare decisis principles, a concept historically alien to the tradition.

  
  

B. The Coordinated Model (Classical Common Law)

The Common Law structure is notably horizontal and diffuse.

• The Notable Judge: Judges historically emerge as notables—highly respected former practitioners—whose authority is rooted in community standing and professional excellence. Their ascent is political or appointive, not bureaucratic.

• The Aim: The core value is the resolution of individualized disputes through an adversarial contest. The judge serves as an impartial referee, ensuring fair play and due process between the parties.

• Contemporary Context: Even the Common Law is not immune to bureaucratic drift. The volume and complexity of modern statutory law necessitate a degree of administrative control and internal procedural regulation, subtly introducing elements of the hierarchical model into a system that prides itself on its decentralized nature.

  
  

II. The Functional Duality: Activism Versus Reaction

The second, perhaps more profound, distinction concerns the purpose of the process itself—the role the state assigns to the judiciary in the broader governance scheme.

A. The Activist/Policy-Implementing Model

Here, the state views the judicial process as an instrument of governance and social transformation.

• The Role: The judiciary is a partner in executing public policy, where the search for the correct legal outcome aligns closely with the pursuit of the state's established goals.

• Association: This is historically aligned with the continental tradition, where the authority of the judge derives from and serves the sovereign legislative will.

• Contemporary Context: Modern constitutionalism has reinvigorated this model across all systems. Where fundamental rights or public goods are at stake, judges often assume an activist posture, crafting remedies that compel institutional change, demonstrating that policy implementation is a function shared, even reluctantly, by the courts.

  
  

B. The Reactive/Dispute-Resolving Model

In this model, the state’s primary commitment is to maintain civil order by providing a mechanism for the peaceful resolution of private conflict.

• The Role: The process is a stage for parties to argue their claims; the judge's responsibility is confined to issuing a binding judgment that settles the matter.

• Association: The adversarial system of the Common Law is the archetypal reactive model.

• Contemporary Context: The global movement for Access to Justice and the subsequent adoption of Alternative Dispute Resolutions (ADRs) by Civil Law jurisdictions constitutes a significant shift toward the reactive ideal. By institutionalizing mandatory conciliation and mediation (as mandated in the Brazilian legal framework), these systems prioritize the consensual settlement of private disputes over the state’s delivery of a judicial verdict. This pragmatic move attempts to enhance the efficacy of the justice system without necessarily altering the fundamental integrity of its hierarchical core.

  
  

Conclusion

Damaska’s framework reveals that the contemporary legal landscape is marked not by the obliteration of these historical ideal types, but by their uneasy hybridization. While Civil Law embraces procedural mechanisms of the Common Law, and vice versa, the deep structural and functional commitments—the ingrained perception of the judge as a servant of the career hierarchy or as an independent community notable—continue to shape the character of justice. The ultimate challenge for all modern legal systems is to integrate these competing values in a manner that upholds the rule of law and the fundamental principles of integrity and fairness.

Bibliography

Damaska, Mirjan R. The Faces of Justice and State Authority: A Comparative Approach to the Legal Process. New Haven: Yale University Press, 1986.