26 A Primer on the Civil-Law Systemcouncils of state. In Germany and countries that follow its model, specialadministrative courts have been created.In theory, ordinary court and administrative court jurisdiction is separate andexclusive, but disputes arise. In France, a special Tribunal of Conflicts decideswhich is the proper court for a disputed case. In Germany, the court in which thecase is filed decides whether it has jurisdiction and may transfer cases overwhich it declines jurisdiction. A decision refusing jurisdiction is binding in thetransferee court. In other countries, such as Italy, the Court of Cassation is thefinal authority on conflicts of jurisdiction.Constitutional law poses a special problem for civil-law judicial adminis-tration. The recent adoption of written constitutions, for example in Germanyand Italy since World War II, illustrates the extent to which the public–privatelaw dichotomy affects court structure and jurisdiction. In those countries, somemethod of reviewing legislative action for constitutionality was necessary, yet itwas clear that this power could not be exercised by the judiciary (i.e., theordinary judiciary) without violating the doctrine of separation of powers andlimiting the supremacy of the legislature.Just as the development of the modern administrative state led to the creationof a separate jurisdiction to review the legality of administrative actions, inGermany and Italy the solution to the question of judicial review was toestablish separate constitutional courts. Civil-law fundamentalists haveoccasionally argued that these tribunals cannot really be “courts,” since civil-lawcourts, strictly speaking, merely interpret and apply the law made by thelegislature. Nonetheless, this view has yielded in the same way that mostobservers now regard entities such as the French Council of State as a “court”and its officials as “judges.” Thus, the strong principle of separation of powersand the traditional civil-law limits on judges’ powers continue to apply to thework of the ordinary judiciary. Conversely, the separate administrative andconstitutional courts are not thought to violate that principle.The Legal ProcessCivil ProcedureModern codes of civil procedure stress that judicial proceedings are public andcontrolled by the parties. Party control, however, is somewhat tempered by theextensive power of the civil-law judge to supervise and shape the fact-findingprocess and by the role of the public prosecutor in private actions.In contrast to the progressive unfolding of evidence—under near completecontrol of the parties—that occurs through the discovery process in theAmerican common-law system, there is no formal civil-law counterpart todiscovery. Nor, in most cases, is there any single event that the common-lawlawyer would recognize as a trial. Instead, a civil-law civil action is a continuingThe Civil-Law System As It Exists and Functions 27series of meetings, hearings, and written communications through whichevidence is introduced and evaluated, testimony is taken, and motions are madeand decided. Initial pleadings are quite general, and the issues are defined at thedirection of the judge as the proceedings progress.The civil process tends to be conducted primarily in writing, and the conceptof a highly concentrated and dramatic “trial” in the common-law sense is notemphasized. Thus, a lawyer who wishes to question a witness must first submitto the judge and opposing counsel “articles of proof” describing the scope of thepotential questions. The witness will be questioned at a later hearing at whichthe judge will typically ask the questions, often framing or reformulating theissues raised in the case. Cross-examination is uncommon. Instead, opposingcounsel’s role is to make certain that the record summary of the testimony iscomplete and correct.The judge supervises the collection of evidence and preparation of asummary of the record on which a decision will be based. Since there is no“pretrial” phase of the proceeding, the evidence is not “discovered” in the senseunderstood by common-law lawyers. Instead, the parties submit proposedevidence to the judge in writing or at oral hearings, and the judge deliversrulings concerning the relevance and admissibility of evidence. Admissibleevidence is presented, for the first and only time, in the final hearing thatconstitutes the trial.Many of the differences between the common-law and civil-law judicialprocess may be attributed to the absence of the civil jury. While some spe-cialized courts involve lay people in the court’s decision-making process, such“lay judges” are not usually chosen on the basis of their impartiality, as arecommon-law jurors. Lay judges are generally selected on the basis of experiencein the subject matter of the court (e.g., labor law), or as representatives of aparticular interest group (e.g., unions or management). Unlike common-lawjurors, lay judges usually serve for a continuing term instead of only a singlecase.Civil-law procedure does not emphasize the need to have a single-event trialbecause there is no need to convene a jury to hear the evidence, find the facts,and apply the law to the facts. The absence of the civil jury also helps to explainthe relative lack of restrictions on the admissibility of evi dence in the civil-lawsystem. Hearsay and opinion evidence is more freely admitted than in common-law systems. Issues of evidentiary weight are left to the judge.Nonetheless, there are indications that the common-law and civil-lawprocedures are not as different as they appear. American pretrial discovery, forexample, significantly reduces the amount of “surprise” evidence that will comeforth at trial. And efficiency concerns have led some civil-law countries, such asGermany, to experiment with more concentrated trials to resolve simple cases. Acentral difference between the common-law and civil-law systems, according to28 A Primer on the Civil-Law Systemone analysis, is that the common-law system “leaves to partisans the work ofgathering and producing the factual material upon which