期刊名称：Washington University Journal of Law & Policy
印刷版ISSN：1533-4686
电子版ISSN：1943-0000
出版年度：2008
卷号：26
期号：1
页码：81-130
出版社：Washington University School of Law
摘要：Some recent studies claim that common law legal systems provide superior solutions compared to those developed in the civil law tradition, in which judges have less rule-making powers. This Essay criticizes these claims by developing and examining an alternative hypothesis, which states that both the common and the civil law have supported a transition to the market economy in adaptation to their circumstances. In particular, judicial discretion, seen here as the main distinguishing feature between both legal systems, is introduced in civil law jurisdictions to protect, rather than to limit, freedom of contract against potential judicial backlash.
关键词：Common law; Comparative law; Common law -- History; Institutional economics; Law & economics; Civil law; Freedom of contract; Judicial discretion; International; United States
