Industrial Policy, National Security, and the Perilous Plight of the WTO, written by Petros C Mavroidis

What comes first – legislation or adjudication? Different legal systems provide different answers to this question. In the common law tradition, the judge is expected to have the first say in all matters that are not clearly regulated by legislation. This naturally relieves the legislator, in part, of the burden of norm creation. In the civil law tradition, by contrast, the burden lies primarily with the legislator. The judge's task is to apply the law to the particular circumstances, either through interpretation or by analogy. Which system is better? The answer to this question depends on the broader context – the 'house', so to speak: the political system, the socioeconomic conditions, the historical development of the legal order, and the particular circumstances of each society. Let us assume, for the sake of argument, that the common law system is 'better', and that we can define 'better' in terms of efficiency. Judges can develop the law incrementally by adapting it to specific circumstances. This is what the theory of the efficiency of the common law suggests.