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Publication Title

Washington University Journal of Law & Policy

Abstract

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.

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