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Civil-Law Courts in Common-Law Systems: Interpretive Cultures in Comparative Perspective

In the comparative law literature and in the literature that deals with legal interpretation and incorporates comparative insights, the general idea is that civil law legal systems are deductive, norm-based, whereas common law legal systems are inductive, precedent-based. In arguing for textualism as an interpretive methodology, the late Justice Antonin Scalia proposed that Federal Courts in the U.S. should behave as civil law courts, since most of the cases over which they adjudicate are to be settled through the construal of predefined, legislature enacted statutes. In this Article, we start from Scalia’s argument and put it to a conceptual and empirical test. Using the concept of interpretive culture, constructed from social science theoretical imports and analyzing comparatively four cases, two decided by the U.S. Supreme Court and two decided the Brazilian Supreme Court, the Article turns Scalia’s assumptions on their head and shows that, actually, it is the U.S. Supreme Court that gives greater emphasis on the textual analysis of the legal norms. Theoretical entailments and comparative law tenets from these findings are discussed. The Article concludes that it is unwarranted to argue that textualism or greater concern with the text of statutes (or constitutional norms) automatically foster separation of powers or respect for democracy, and that, rather, these are parts of interpretive cultures that vary in time and space and for complex reasons.