The theory and practice of precedent england, the united states of america, france, germany, and recommendations for vietnam

A General Concept of Precedent Concept of precedent Ideology o f Judicial Decision - Making Ideology of Bound Judicial Decision-Making Ideology O f Free Judicial Decision-Making Ideology

FACULTY OF LAW, LUND UNIVERSITY HANOI LAW UNIVERSITY

JOINT DOCTORAL PROGRAM

NGUYỄN VĂN NAM

THE THEORY AND PRACTICE OF PRECEDENT IN ENGLAND, THE UNITED STATES OF AMERICA, FRANCE, GERMANY, AND

RECOMMENDATIONS FOR VIETNAM

Legal Field : International Law and Comparative Law

Code:62 38 60 01

Supervisors : l.Prof.Dr Lê Minh Tâm

2.Prof.Dr Michael Bogdan

DOCTORAL DISSERTATION IN LAW

TRUNG TÂM THÔNG TIN THƯ V Ệ N TRỰÒNG OẠI HỌC LUẬT HÀ NỘ! ị PHÓNG BỌC _ 4 6

HÀ NỘI-2011

ACKNOV/LEDGEM ENTS

To accom plish this doctoral dissertation, I would like to express my sincere thanks to all organizations, individuals and family members who have helped and facilitated my research tasks for 5 years ( since 2006 to 2011)

I express my deepest gratitude to my two supervisor professors They are Prf.Dr M ichael Bogdan (Faculty o f Law, University o f Lund , Sweden) and Prof.Dr Le Minh Tam (Hanoi Law University) Professor Le M inh Tam alvvays encouraged me to develop scientiíic ideas in the dissertation Professor M ichael Bogdan was very enthusiastic to guide me to carry out my research for my dissertation In the research process I learned a lot from my

tw o supervisors For Professor M ichael Bogdan, I really leamed a lot from him about how to use English in legal research, because o f my doctoral dissertation w as written in both English and Vietnamese I understood that the enthusiasm and perceptive comments o f Professor M ichael Bogdan have helped me m ature a lot in using English for my dissertation Proíessor Le

M inh Tam gave me some suggestions which were very practical and versatile options on translating my dissertation from English into Vietnamese

I am extremely grateful to the help o f teachers, faculty, and staff o f Hanoi Law University W ithout their help I would encounter many difficulties

in the im plem entation o f the research for my dissertation I really thank to all insightíìil com m ents o f Prof.Dr Nguyen Van Dong, Prof.Dr Thai Vinh Thang, Prof Dr N guyen M inh Doan, Dr N guyen Quoc Hoan, and Dr To Van Hoa I alsp thank Dr Nguyen Thi Van Anh, the director o f the Com parative L aw Center, Hanoi Law University gave special chances to me

to participate in teaching and scientiíìc exchange on com parative law at Hanoi Law ưniversity D uring the course o f doing researches for my dissertation, I received help and support from the board o f directors o f the

International Developm ent Cooperation Agency (Sida)” I vvould like to say thank you to Prof Dr Le M inh Tam, Prof Dr Le Thi Son, Prof Vu Thi Kim Phung I am grateíul for the thoughtful enthusiasm o f LLM Duong Thi Hien,

MA Cu Thi Thuy Trang, who are working at the International Cooperation Department o f Ha Noi Law University 1 w ould also like to thank you sincerely to those colleagues and other Phd candidates o f the joint doctoral program under the frame o f the project o f Strengthening Legal Education in Viet Nam íunded by Sida

I especially thank the Sida-funded budget who sponsored for my study and research abroad according to the doctoral training program s To complete

my doctoral dissertation, I was gi ven chances to study and research in Faculty

o f Law, Lund University Studying and participating in scientific activities at the Faculty o f Law, Lund University was lucky and very happy for my life The help o f professors, lecturers, library staffs and the m em bers o f the Faculty

o f Law in Lund have contributed signifícantly to the completion o f my doctoral dissertation I would like to especially thank those professors who are

m em ber o f the Faculty o f Law-Lund They are Proí.Dr Bengt Lundell, Prof.Dr Lars Gốran M alm berg, Prof.Dr Christina M oẽll, Prof Christian Hãthén Prof.Dr Kjell Ả M odéer, Prof.Dr Trasm an Per Ole, Prof.Dr Hans

H einrich Vogel, Prof.Dr M ichael Bogdan, Prof.Dr Christoffer Wong I am grateful for the enthusiasm o f the librarian A nna W iberg and others who helped me for searching materials used for my doctoral dissertation

Contribution to the completion o f my dissertation, I w ould like to thank

M ax Planck Institute for Com parative and International Private Law, Ham burg, the Federal Republic o f Germany has created good conditions for

me to find reading materials and w riting my dissertation at this institute (from January to April 2008) M uch o f the content o f this dissertation related to the theory o f precedent in the comm on law was w ritten during the time o f my

to July, 2009) I w ould like especially to thank Professor Stephen c Hicks, Prof B em ard O rtw ein and Prof M ichael A very w ho w ere extrem ely enthusiastic guided and answ ered my questions about A m erican law I also express my sincere thanks to the help o f Jonathan D M essinger, A m erican Law yer and his fam ily during m y study in B oston L aw yer Jonathan D

M essinger, who enthusiastically explained, discussing and helping me with practical approaches applied in the case o f the U S legal system Perhaps it would be difficult for m e to vvrite about practices o f precedent in A m erican law in my dissertation if I did not have the opportunity to study in Boston

Research on practices o f V ietnam ese P eo p le’ Suprem e C ourt, I w ould like to express m y sincere thanks to the enthusiastic help o f ju d g e N guyen Van Cuong, deputy director o f the Institute for Judicial Science o f the Suprem e People's C ourt It can be said to be exchanged and done research collaboration with TS N guyen V an C uong has helped m e to get practical and useíìil iníorm ation for m y discussion about precedent in V ietnam ese law and also recommendation for Vietnam to adopt a proper doctrine o f precedent.

I w ould like to express my deep gratitude to m y parents, m y w ife and

my tw o sons, my sisters and m y brothers T hey all supported my research for accom plishing m y dissertation on time

Last but not least, I w ould like to express m y gratitude to leaders the

A cadem y o f People's Security, my colleagues and the dean o f my law íaculty

o f the A cadem y o f P eople's Security They helped me to com bine my teaching and doing research for m y dissertation during the past 5 years

This dissertation is w ritten in both E nglish and V ietnam ese Thereíbre, the author o f the thesis w ill be hard to avoid the lim itations o f language expressing the translation thesis T hank you for com m ents from readers

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Outline of the Research

Part I Theory Of Precedent Chapter 2 A General Concept of Precedent

Concept of precedent

Ideology o f Judicial Decision - Making

Ideology of Bound Judicial Decision-Making

Ideology O f Free Judicial Decision-Making

Ideology of Legal And Rational Judicial Decision-Making

Chapter 3 Theory Of Precedent In The Common Law System

Introduction

The Traditional Concept O f Precedent

The Positivist Theory O f Precedent

American Legal Realism

Why Is Precedent Followed By Judges

Chapter 4 Theory O f Precedent In The Civil Law System

Introduction

The Historical School In Germany

The Positivist Theory O f Precedent

Theory O f Precedent In France

Part II Precedent in The Common law systems

Chapter 5 Precedent in The English Legal System

Introduction To The English Common Law

The Overview o f the English Judiciary

Introduction

Hierarchy o f English Courts ( Diagram No 1)

The English Doctrine o f Precedent

The Concept o f Precedent in English law

What Does Constitute A precedent In English law

The Ratio Decidendi and Obiter

Persuasive Authority o f Precedents

Overruling Precedent

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69747476

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86

8991

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The House of Lords

The Court O f Appeal

The High Court

Precedent and Legal principles

The Role o f Precedent in Legal Education in England

The Law Reports in England

Chapter 6 Precedent In The American Legal System

Introduction To The American Legal System

The American Judiciary

The Characteristic o f The U.S Judiciary

The Hierarchy o f The Federal Court System

An Overvievv About The State Court System

The American Doctrine o f Precedent

American Common Law Tradition

The American Attitudes to Precedent

Concept of Precedent ( Stare decisis)

Operation o f Doctrine of Precedent in The State Coưrt System

Operation o f Precedent in Nevv York Court System

Examples for Not Following Precedent o f the New York State Court of

Appeal

Precedents in Constitutional Issues

Upholding Stare Decisis

Overruling Precedent

Rationale for Overruling Precedent

Examples o f Overruling Precedent of the U.S Supreme Court

Precedent in lnterpreting Statutes

A Role o f Legal Education in the U.S.A

Law Reports In The U.S.A

Part III Precedent in The Civil Law System

Chapter 7 Precedent in The French Legal System

Theory o f Precedent in French Law

Non-binding Precedent in French Law

Precedent in Different Areas of Law

An Overvievv The French Court System

Introduction

Hierarchy o f French Court System

The Judicial Court System

The Administrative Court System

Practice o f Precedent in The French Court System

Example o f Precedent o f the Cour de Cassation

Example o f Precedents o f the Conseil d ’Etat

The Role o f precedent in French Legal Education

Publishing Judgment o f French Courts

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C hapter 8 Precedent In The Germ an Legal System

Theory of Precedent in The German Law

German Concept of Precedent

Arguments In Favour o f Precedent Based Legislative Laws

The Role of Precedent in Different Branches of Law

The German Court System

Practice o f Precedents in The German Court System

Precedent o f the German Federal Constitutional Court

Formal Bindingness o f Decisions ofthe German Federal Constitutional

Court

Overruling Precedent o f the Federal Constitutional Court

The Dissenting Opinion o f The Federal Constitutional Court

Example o f Precedents o f The Federal Constitutional Court

Examples o f Precedents o f the Federal Constitutional Court in the Judicial

Review of Statutory Laws

Example o f Decisions o f The Federal Constitutional Court For The

Gap-Filling of the Statutory laws

Practice of Precedent o f the Federal Court of Justice

Authority o f the German Federal Court of Justice‘s Precedents

Examples o f Precedents of the Federal Court of Justice in Civil Law

Matters

Publication of Judgments and Law Reports

The Role o f Precedent in the German Legal Education

Part IV Precedent ỉn Vietnamese legal System and Recommendation For Vietnam

Chapter 9 Precedent in the Context of Vietnamese Legal System

Introduction

Theory of Precedent in Viet Nam

Precedent and Concept o f law in The Vietnamese Legal System under

Comparative Law Perspectives

Chapter 10 Adoption of Precedent into The Vietnamese legal system

Introduction

The differences betvveen doctrine o f precedent in Common law and Civil Law Systems

Binding and non-binding precedent

Precedent and The legal Method

Common law Precedent and Precedent Based Statutory Law

Convergence o f Doctrines of Precedent in The Civil Law and Common Law System

Reception Doctrine o f Precedent into Vietnamese Legal System

The Concept of Legal Reception

Seeking For A Proper Doctrine of Precedent For Vietnam

Chapter 11 The Role of Precedent for developing legal education in

Vietnam

12.5

SPC

Chapter 13 Recommendations for Adopting a Precedent-based 190

Approach in the Vietnamese Legal System

List of Abbreviations

Constitutional Court)

vvhich consists o f decisions of the German Federal Constitutional Court)

BGHZ Entscheidungen des Bundesgerichthofes in Zivilsachen (the Law

report consisting of the civil judgments of the German Federal Court o f Justice)

report consisting of the criminal judgments o f the German Federal Court o f Justice)

Court)

o f C o u rts)

NQ-TW Nghị Quyết- Trung ư ơ n g của Bộ Chính trị (Resolution of the

Poíitburo o f the VCP)

u.s.c United States Code

Chapter 1 Introduction

1.1 Background

In 2004, the Vietnam’s Supreme People’s Court (SPC) published two volumes

of its past decisions This was a remarkable event in the history o f the Vietnamese court system, because it was the íìrst time a collection o f the Court’s decisions had been published We owe thanks to the help of the United States Agency for International Development (USAID) who sponsored the publication vvithin the framework o f the Star Project-Vietnam To highlight this special event, in the introductory pages o f volume 1, Dennis Zvinakis, director of ƯSAID in Vietnam, introduces the reasons for publishing the Court’s decisions and the beneíìts from publishing judicial decisions will contribute for legal development in Vietnam In the context of globalization, as a member of the World Trade Organization, Vietnam has

to comply with the principle of transparency which requires Vietnamese courts to publish their decisions There are also some statements in the first pages o f volume 1 which focus on the reasons for the future annual publication o f the decisions of the Court The interesting question here is vvhether or not Vietnamese lawyers and judges can refer to these published decisions in their arguments before Vietnamese courts It

is widely accepted that there is no tradition in Vietnam of using previous court decisions to assist legal reasoning in subsequent cases vvith similar facts This will then lead to question about the role of precedent in the Vietnamese legal system

After Vietnam launched its ‘renovation’ policy (doi moi) in 1986, the

Vietnamese Communist Party issued many policies to reform the Vietnamese legal system in general and the judicial system ỉn particular Dissimilar to the case in many westem countries, the cuưent Vietnamese legal system is built within the Socialist regime in which the Vietnam Communist Party plays the leading role in the State and society as a whole Thereíore, any transíòrmation o f law or major legal reform must

be carried out under policies o f the Vietnamese Communist Party Until 2005, the date o f Resolution 49 NQ/TW o f the Vietnamese Communist Party (so-called Judicial Reform Strategy to 2020), the role of precedent in law was not mentioned as the policies o f Vietnamese Communist Party concerning legal reform in Vietnam The Resolution 49 NQ/TW explicitly issues a policy that the Vietnam Supreme People’s Court had to consider its role in summarizing judicial experience, guiding legal application throughout the country and developing precedents as a means for overcoming the deíĩciencies of the law It is interesting to note that the word

‘precedent’ appeared for the first time in the Vietnamese Communist Party in its policies on legal reíòrm in Vietnam Together with this new orientation of the Resolution 49 NQ/TW calling for acknovvledging precedent in Vietnamese law, the publication o f the first two volumes of the đecisions of the Supreme People’s Court has not so far changed the attitudes o f Vietnamese lawyers tovvards the role of precedent in the lavv According to the Vietnamese Constitution 1992 and Vietnamese law in general, precedent or case law is not accepted as a source of law in Vietnam Vietnamese judges do not refer to previous judiciai decisions when deciding the cases

beíòre them Although Vietnamese lavvyers are not prohibited from using precedents

in their arguments beíòre the court, but they do not regularly do this Before the Vietnam’s SPC published its decisions, Vietnamese lavvyers were not easy to access judicial decisions o f the Vietnamese courts In the context o f Vietnamese legal culture, there is still a lack o f understanding about the concept and the function o f precedents The Judges’ Council o f the SPC regularly issues resolutions on interpreting general provisions or articles o f legislative acts In addition, the Chief Justice of the Vietnam’s SPC is empowered to issue circulars to implement the written law This mandatory function o f the Court makes many people consider that the resolutions and circulars issued by the Court are binding precedents for the lower courts to follow.' This is obviously a wrong assumption, because, according to Vietnamese law, a resolution or a circular o f the SPC consists o f legal rules which are created in an abstract manner that is different from a precedent created in a concrete manner as courts in the westem legal tradition often do

The problem is that if precedent is not recognized in Vietnamese law, how will judges and lawyers treat the published decisions o f the Vietnam ’s Supreme People’s Court This issue has been paid much attention by many Vietnamese legal scholars It is widely accepted that the overall policy o f the legal reform allows

Vietnam to make its legal system better than it vvas before doi moi In the course o f

legal reform, the legislature passed many laws including codes, for examples the Penal Code 1999, Civil code 2005, and the Commercial Code 2005, the Law on Enterprises 2005 and so on These laws contain many general legal principles and provisions which need to be interpreted by judges when the latter seek to apply them

to different concrete situations In reality, Vietnamese judges have faced many obstacles when trying to deal with the broad and vague provisions o f legislative laws This situation will partly be resolved when Vietnamese judges and lawyers know how

to use such laws by combining them with relevant precedents for deciding the cases beíòre them In the process o f the transformation o f the Vietnamese legal system into one which effectively serves the market economy, foreign laws and legal doctrines have been introduced into Vietnam as parts o f an overall legal reception vvithin the context of globalization Vietnam has followed some European countries and built a codiĩied legal system, but the problem is that the country has yet to adopt any doctrine o f precedent from any íòreign legal system Judicial decision making in Vietnam tầces an obstacle when applying many legal rules o f the codes without using precedents Calling for the use o f precedents in many areas o f law is a hot topic in Vietnam

The issue o f how to understand precedent in both theoretical and practical terms has not been systematically studied in Vietnam and has yet to be dealt with in a comprehensive work Some scholars think that if precedent is accepted in the legal system, judges will have discretion to decide cases that vvould harm the rule o f law in the Vietnamese socialist legal system There is also the argument against using

1 Hanoi Law University, Textbook Theories o f State and Law, Judicial Publisher, 2006,p.355.

precedent that precedent as a source of law is only used in common law systems, and precedent is not a legal source in the Socialist legal system like Vietnam Indeed, precedent is íòrmally recognized as a legal source in the common law system where its doctrine o f precedent is regarded as one of its main characteristers in distinguishing from its civil lavv counterparts But it would be false to conclude that in civil law systems precedent does not play any signiíicant role On the contrary, the theories and practices in some European legal systems prove that precedent, to some extent, plays considerable role in the French and German legal systems among others

It is vvidely accepted that the Vietnamese legal system is neither a common law one nor a trađitional civil law One Thereíòre, it vvill be useful for Vietnam to adopt a proper doctrine of precedent if the doctrines o f precedent as appearing in both common law and civil law countries are introduced into Vietnam under comparative law perspectives The effort of gradually establishing and using precedent in Vietnamese legal system will be worth doing if Vietnamese lavvyers and judges know how to leam from íòreign legal systems The experiences, in terms of precedent, in speciíic legal systems will help Vietnam to find a proper approach to using precedent

as a source of law In addition, recognizing the role o f precedent in the legal system is

an indispensable means for enhancing legal certainty, fairness, uniíòrmity, and predictability The use o f precedent for legal education will also play an important role for improving quality of Vietnamese legal education

In brief, to understand this background, I have spent my time in making a comparative study of the theory and practice o f precedent in some countries with a view to the systematic introduction o f the doctrines of precedent into Vietnam The title of my thesis is ‘The theory and practice of Precedent in the United States, England, France, and Germany with recommendations for Vietnam.’

1.2 Purposes

The research has three aims First, the theory and practice of precedent in both common law and civil law legal systems vvill be examined within a comparative law framework Precedent is now recognized in both kinds of system, but reasons for accepting precedent are supported by different theories It would be incoưect to conclude that there is a single theory o f precedent in common law systems in contrast

to that o f the civil lavv systems Regarding precedent in the common law systems, the theory acknowledging precedent in the English iaw could not be regarded as the same reason for explaining the reasons for supporting the American doctrine of precedent during the development o f the U.S legal system The same situation could be found

in comparing the theories o f precedent held by the civil law systems These differences, together with other conditions, caused differences in the use of precedent from one legal system to the other This is very important for any one who wants to get a comprehensive evaluation o f precedents In the context o f the Vietnamese legal system, the research with the broad scope mentioned above will serve as a good way

to understand about precedent in general

Secondly, the research has the crucial task o f íìnding solutions for adopting proper elements of the doctrines o f precedent in the íbreign legal systems as will be mentioned in this research It is impossible simply to copy a doctrine of precedent of

a foreign legal system without taking into accoưnt the context o f the Vietnamese legal system Any recommendation for using and establishing precedent in Vietnam should

be addressed in an open and flexible vvay Solutions need to be obịectively assessed and checked

Thirdly, the research on precedent in various countries will be valuable for Vietnamese readers, especially for legal education within a comparative law perspective Legal education in Vietnam has been changing to come up with the demands of a changing society Vietnamese law students should approach a legal issue in a comparative perspective rather than limiting themselves to domestic laws and Vietnamese legal materials The doctrines compared with each other may raise some interesting issues for readers allovving them to find better solutions for establishing and using precedent in Vietnam

1.3 Limitation

Research on the theory and practice of precedent in a comparative law perspective can be done in different ways This research íbcuses on theory and practice of precedent in four íòreign legal systems namely, the English and American legal systems, regarded as common law systems The remaining two legal systems are the German and the French ones, representing the civil law system Studying legal systems belonging to both civil law and common law systems in the research is based on the common notion of grouping legal systems into lcgal families Due to this limitation, my research vvill not explain in detail the classiíication o f the common law and civil law systems, in term o f their approach to precedent

Part I of the thesis will deal brieíly with theories o f precedent in the common law and civil law system These theories are only examined to a very limited extent and the íòcus is only on traditional theories about the legality o f precedent as a source of law which has more or less impact on the practice o f precedent in the United States of America, England, France and Germany Regarding theories of precedent, it is vvorth noting what Raimo Siltala writes in his book “A Theory o f Precedent From Analytical Positivism to Post-Analytical Philosophy o f Law”2 My research does not cover a diversiíied theory o f precedent as does Raimo Siltala For example, my research does not investigate the concept o f the judicial legal norm in terms of precedent Regarding the practice o f precedent, my research only íòcuses on analyzing precedent in general, not on precedents in speciíic substantive areas o f law To give a picture o f the practice

o f precedent, a description o f the judiciary o f each o f the four legal systems is sketched with the focus on those courts whose decisions are treated as precedents For example the research will focus on the practice of the U.S Supreme Court in the U.S.A., the German Constitutional Court in Germany and so on The practice o f precedent in the

2 Raimo Siltala, A Theory o f Precedent From Analytical Positivism To A Post - Analytical

Philosophy o f Law, Hart Publishing, 2000.

four íoreign legal systems is here limited to consider when precedent is binding or non- binding and the attitudes o f the lovver courts to precedents of superior courts within the same judicial hierarchy Part II will deal with the practice o f precedent in the U.S and English legal systems while Part III will deal with the practice o f precedent in the French and German legal systems.

As mentioned, the research does not intend to compare the substantive content of precedents in a speciíic area o f law in any of the four mentioned legal systems Thereíòre, an example o f precedent may be mentioned vvithout detailing its content, but only a mentioned precedent may purpose to show how that precedent was treated by a competent court in a legal system The practice o f precedent in a legal system is examined within the research may vary from One system to another For example, the practice of precedent in the U.S legal system is studied by íocusing in constitutional issues while practice of precedent in French law is mainly mentioned in the area of French civil law The research is also limited to the national rather than international scale Thus, the theory and practice o f precedent in Germany and France are considered

at the national levels, with no consideration o f precedents o f the Court of Justice o f the European Union or those of the European Court of Human Rights

Regarding the role o f precedent in legal education, the research íbcuses on how precedent is used in iegal education in the four countries (the U.S.A., England, Germany and France) This plays an important role in íòrmulating the legal methods later used by lavvyers in those systems Beyond this, the research hopeíully provides outside perspectives on the value o f strengthening legal education in Vietnam

Regarding recommendation for the Vietnamese legal system, the research does not intend to provide mere suggestions or proposals on hovv to establish and use precedents The recommendations for Vietnam, in terms o f precedent, are concluded by analyzing and comparing the doctrines o f precedents o f the four foreign legal systems studied in the research A description of the Vietnamese court system is not introduced, because the research only íocuses on the íunction of the Vietnam Supreme’s People Court in developing precedents The research studies the current manner of using precedent in Vietnam rather than examining the theory and practice o f precedent throughout its legal history When dealing with precedent in the Vietnamese legal system, the research does not limit its study to any speciíic area of Vietnamese law, but examines cases and case law in different areas o f the law

1.4 Research Methods

This research is carried out by using different methods The methods employed are the legal dogmatic, descriptive, and comparative methods vvhich are also combined with each other as follows;

The legal dogmatic method is used in the research, because it is very difficult for

a legal scholar to do legal researches vvithout relying on previous works The subject

o f the research is very broad, so the legal dogmatic method is used to íbrmulate the theories and practices of precedent in the different legal systems The theory of

precedent is mentioned in the Part 1 of the thesis will be reintroduced by collecting the outcomes of previous legal researches concerning the theories o f precedent The content o f Part II and III o f the research are based on analyzing and interpreting legal doctrines concerning theories and practices of precedent in the common law and civil law systems Legal norms o f different legal systems are sometimes used to provide the legal ground for using and applying the precedents Case law is frequently referred in the research For instance, a specific precedent in the English law like the

Practice Statement 3 All ER (1966) is referred to in Part II, chapter 5 so as to be able

to study a remarkable change to the doctrine of stare decisis in English law Using the

legal dogmatic method for carrying out the research will assist for interpreting and analyzing the content o f the research in a coherent and consistent manner

The descriptive method is used to introduce the court systems in the Unites States

of America, England, Germany, and France A Comparative research is not normally conducted vvith description, but in this research the description of several systems is indispensable for providing a better understanding o f the operation of precedent in each legal system mentioned in the research In addition, vvithout the knowledge o f a speciíic court system, One may not easily be able to ascertain the practice of precedent vvithin it The description of court systems is usually restricted to studying how precedents of the higher courts are followed or not by lower courts in the specifíc court systems Within this research, the descriptive method is also used to introduce the publication of precedents in those legal systems mentioned in the research

Research with the title ‘The doctrine o f precedení in the United States o f America, England, Germany, France, and recommendations fo r Vietnam’’ cannot be carried out

vvithout using a comparative method In general, the comparative method is commonly used in legal studies, but when it comes to dealing vvith íoreign law the method has to be clearly defined beíòre it is used This research would be less valuable if the theory and practice of precedent in a legal system vvere merely described vvithout using any comparative elements The comparative method is used

in the research for three purposes

Firstly, examining the issue of precedent by using the comparative method may provide a better understanding of the doctrine o f precedent in each individual legal system within the frame o f the research As mentioned above, precedent is regarded

as a source o f law which is created by judicial decision- making ũinction In some parts o f this dissertation, although the detailed content of precedents is not similar they can be used to compare practice of courts in different legal systems Precedents are used as examples for elucidating the practice o f courts in creating, applying, or rẹịecting them

Secondly, the comparative method serves for drawing conclusion on which the recommendations for Vietnam may be based This is the most important purpose of the research, as mentioned above It is necessary to bear in mind when embarking a comparative study that ‘there is no one deíinition o f what comparative law and

comparative method are’3 and there is a notion in studying with the comparative nethod that the ‘thing to be compared must be comparable’.4 Regarding the subject

cf this research, it is possible to compare different aspects o f the theory o f precedent with each other Part I of the thesis is íòrmulated by using the comparative method to study the theoretical aspects of the doctrine of precedent in traditional English common law compared with those in American law In part II o f the research, the practice o f the doctrine of precedent in American law is compared with its counterpart in English law in order to reach the conclusion that the American doctrine

cf precedent is more ílexible than the English One The same comparison is applied to part III when it comes to deal with the practice o f precedent in the French and German law

Thirdly, regarding part IV of the research, by using the comparison mentioned in Parts II and III of the research, a tentative recommendation will be dravvn for Vietnam, because in Vietnamese legal culture there is a lack o f experience in dealing vith the issue of precedent in both theoretical and practical respects The comparative rrethod is used to show which aspects of foreign doctrines o f precedent may be suitable for Vietnam to adopt

Hovvever, my research still encounters many problems and this seems to be inevitable, because the subject matter o f the research is very broad The vvaming statement by Esin ỔRŨCỦ5 is a good lesson if research is to avoid a pitfall in dealing with the theory and practice o f precedent under comparative law perspective

1.5 Materials

To carry out the research, legal materials are the most neeessary things helping the author to reach the result o f his research It is vvidely accepted that the doctrine o f precedent is not a new legal issue There are numerous books, articles, theses, monographs, law journals and other publications which deal with the topic of the research Regarding the subject o f the theory of precedent, Raimo Siltala made great contribution to the theory o f precedent under comparative perspective by synthesizing many aspects o f the theory o f precedent in his book6 The content o f the Part I o f this research inherits many aspects from Raimo Siltala’s book To deal with the issue o f how precedent operates in different legal systems, the research utilizes the most comprehensive introduction to practical aspects, namely the book ‘Interpreting

3 Esin ỐRỮCỮ, D eveloping Comparative Law In Comparative Law A Handbook, edited by Esin ỒRŨCỮ and Daviđ Nelken, Hart Publishing, 2007, p.47.

4 n>ib., p 47.

5 Esin ỒRŨCŨ argues that ‘We must remember that a comparative lawyer faces a number o f

additional problems These include the choice o f systems, appreciation o f cross-cultural system

larguage, terminology, translations, both participant and non-participant observer effect, access to mEterial beyond the legal, the absurdity o f explanations oíĩered, the reliability o f secondary sources, the existence o f historical accidents and anachronism o f predictions.’ See: Esin ỔRỦCỦ, Developing Comparative Law In Comparative Law A Handbook, edited by Esin ỒRỦCŨ and David Nelken, Hart Puòlishing, 2007, p.47.

6 Raimo Siltala, supra note2, p.38.

Precedents A Comparative Study’7 vvhich is edited by the co-authors D.Neil MacCormick and Robert S.Summers The practical aspects of precedents in four legal systems have here to be introduced and compared in the context o f the relevant courts systems Thereíore, systematic iníbrmation on the organization o f the court systems

in the United States of America, England, France, and Germany is crucial to the research Hovvever, it is not easy to find materials that provide sufficient information for the research That is why various materials have been used for the research and they will be named in the Bibliography of the dissertation

It is worth noting that this research is vvritten in English Its author (Nam Nguyen Van) can only use English and Vietnamese in his studies Thereíore, there have been many challenges regarding accessing original materials conceming the theories and practices o f precedent in German and French legal system Though this research deals with the issue of precedent in German and French lavv, the materials used are mainly in English I hope that no serious errors come from these materials, many of which were collected on the internet

1.6 Outline of the Research

To achieve the purposes set out above, my research begins vvith chapter 1 (Introduction) The remaining text is organized into 4 parts each of which is divided into chapters Part I is devoted to introducing and analyzing the theoretical aspects of precedent in both common law and civil lavv countries Knovvledge coming from the theory o f precedent vvill be important for approaching the practical aspects of precedent in both the common law and the civil lavv system Part II deals with precedent in the common law system The English doctrine o f precedent is introduced

in Chapter 5 and the American doctrine of precedent is introduced in Chapter 6 By doing this, the reader can understand the diíTerences betvveen English and American

law, in terms o f the doctrine o f precedent The doctrine o f stare decisis has been

adopted in the American common law to fit its social and political conditions The ultimate goal o f the research is to draw the conclusion that there is no single doctrine

o f precedent in the common law counừies Similarly, part III deals with precedent in the German and French legal systems France has a codiíĩed legal system After the French Revolution, French judges were prohibited from making lavv like a common law judge in the course o f judicial decision making Precedent was not formally accepted as a binding source o f law in the French legal system However, the role of precedent is not entirely rẹịected; for example, French administrative law has been developing from precedents of French administrative courts In the area of French civil law, the provisions and principles o f the French Civil Code were interpreted by

French courts, amongst them the Cour de cassation, which helped to adapt the Civil

Code to changing social and economic conditions in France Precedents o f the Cour

de cassation are de fa cto followed by the lower courts in France Chapter 7 provides

many practical aspects o f precedent in French lavv The German legal system is also

7 MacCormick and R.S Summers (Eds), Interpreting Precedents A Comparative Study, Ashgate Publishing Company, 1997.

regarded as the civil law system but it has a federal rather than a unitary system However, due to historical, political, and social conditions, the theory and practice of precedent in German law was not understood in the same way as in French law Being iníluenced by the theory o f the German Historical School and other ideas, precedent played a very important role in some areas o f law in Germany, such as German Constitutional law, labour law, and civil law The practice of the German Constitutional Court is used as a ground for saying that precedents of the Court are binding in the German legal system This seems to directly accept that justices of the German Constitutional Court are empowered to make law in the course of deciding the cases beíore them Chapter 8 is also devoted to providing a general view of the practical aspects of precedent in the German legal system.

As mentioned above, the result o f examining precedents in the foreign legal systems is to allovv us to find solutions for Vietnam The solutions must be such that they are able to fit in with the Vietnamese legal culture Part IV of the thesis is important for the second major purpose o f the research which is to show how Vietnamese legal system lacks a doctrine of precedent and how a proper doctrine of precedent can be adopted in Vietnam Studying theory and practice o f precedent vvithin the context in which the concept o f law in Vietnam excludes precedent as a source o f law in the Vietnamese legal system This is a big challenge for the research The main content of part IV is devoted to explaining this situation Regarding law as culture, it is necessary to adopt a broad concept o f law in Vietnam rather than hold that law only takes the form o f a legal normative rule Also, we ask how Vietnam is going to adopt a doctrine o f precedent vvhich will function well within the Vietnamese legal system

Part I Theory Of Precedent Chapter 2 A General Concept of Precedent

2.1 Concept of precedent

In general, a precedent is an adjudicated case or decision o f a court of justice vvhich provides a rule or authority for the determination of an identical or a similar case arising subsequently The theory on vvhich it is possible for one decision to be an authority for another is either that the facts are alike or that, if the facts are different, the principle that govemed the first case is applicable to the variant facts.8

From the historical point of view, the earliest support for using precedent could be found in the statement o f Aristotle that like cases should be treated alike.9 This idea might be said to be at the root of the doctrine o f precedent in both the common law and civil law traditions However, the doctrine o f precedent embodied in the common law tradition is not the same as that followed in the civil law tradition The doctrine o f precedent in English and American law has to be understood in connection with the evolution of common law in England, and the United States of America The doctrine o f precedent in some civil law countries under like Germany, and France have its own separate characters in comparing with that of the common law tradition o f English law and American law

The key distinction betvveen the common law and civil law systems is that precedent is a primary source of law in the former but only a secondary source in the latter From ancient times, the civil law tradition regarded the judicial decision as a

non-binding legal source for judges deciding particular cases.10 In A.D.534 Justinìan promulgated the Corpus Juris Civilis in which he laid down that a judicial decision

could not be rendered on the ground o f prior case-law, but judges had to decide cases beíòre them by applying the law s." Since the beginning o f the 19th century, a movement for codifícation of the civil law system appeared in some European countries This legal movement occurred clearly in France, and Germany In France the legislators did not favour the use o f precedent For instance, Article 5 of the French Civil Code of 1804 íòrbids judges from pronouncing decisions so as to make general rules or precedents for the future This idea was to abolish the use of

decisions made by judges as a source of law The German Civil Code (Bùrgerliches

Gesetzbuch-B.G.B) vvhich came into íòrce in 1900 This code was expected to restrict

the judicial role to that o f interpretation rather than the creation and development of the law by judicial decisions.12

8 Bryanth A Gamer, Black’s Law Dictionary, Seventh Edition, West Group St Paul,Minn (1999), p 1195.

9 Gale Group, The Dictionary o f The History o f Ideas (2003), at http://etext.virginia.edu/cgi-

Hovvever, the modem civil law system has in fact treated the role of precedent

in a more positive way There is a clear tendency in many civil law countries that a settled line of cases has great authority for judges to refer to when they decides cases beíòre them 13 For instance, a decision of the German Constitution Court and the fíve different Supreme Courts within the German judiciary are followed by the lower courts.14 It is vvidely accepted that ideas on precedent have undergone considerable changes over the centuries Even in French law, where the force o f precedent is weaker than in German law 15, decisions of the French Council o f State are considered important precedents in French administrative law.16 The decisions of the French

Court o f Cassation are de facto followed by the lovver courts.17Precedent, therefore,

plays an important role in the everyday operation of the civil court systems, because the vvritten law always needs to be interpreted and applied in a detailed manner This will be explored in the subsequent parts o f the thesis.1

In the common law systems, precedent is a primary source o f law For those common law systems, in general, the precedents o f the higher courts are binding on the lower courts.19 The doctrine of precedent is rooted in English law Rupert Cross says that the basic principle of the doctrine of precedent in the common law system is that like cases should be decided alike.20 More than this, a precedent is a binding source o f law English judges are normally obliged to follow precedents of English law Brieíly, the doctrine of precedent requires that the precedents o f all higher courts bind the lower courts and some courts are also bound by their own decisions For obvious historical reasons, American law was deeply iníluenced by English law during the colonial period However, it wou!d be a mistake to conclude that the American doctrine of precedent is understood in the same way as that in English lavv For one thing, American judges approach the doctrine o f precedent more Aexibly than English judges do.21 The United States Supreme Court and the State appellate courts

in the different States do not regard themselves as absolutely bound by their past decisions.2

Precedent also plays an important role in identiíying the legal methods used

by the common law with that of civil law systems According to Goodhart, the critical

13 M A Glendon; M.W.Gordon; P.G.Carozza, supra notelO, p.131.

14 N.Foster, German Legal System And Law, 2nd Edition, Blackstone Press Limited 1996, p.62.

15 M A Glendon; supra notelO, p.132.

16 It is generally said that French administrative law is mainly based on precedents See: Michel Troper and Christophe Grzegorczyk, “Precedent in France”, in ‘ Interpreting Precedents A Comparative Study’, Edited by MacCormick and R s Summers, Ashgate Publishing Company, 1997,p 113.

17 K.Zweigert & H.Kổtz, Introduction to Comparative iaw, Third Edition, Clarendon Press

O xford,1998, p.p 121-124.

18 Part II o f the thesis will deal with precedent in the American and English legal systems while Part III

o f the thesis will deal with precedent in the French and German legal system.

19 M A Glendon;M.W.Gordon;P.G.Carozza, supra note 10, p.263.

20 Rupert Cross, Precedent In English law,Oxford At The Clarendon Press (1961), p.4.

21 Mortimer N s Seller, The Doctrine O f Precedent in the United States O f America, 54 Am.J.Comp L.67,2006.

22 Rupert Cross, supra note 20, p.p.12-13.

difference betvveen the Continental and English method o f legal thinking lies in the

doctrine of the binding force of precedent (Stare decisis).23 Linked to this, the key

legal method o f the common law system is the inductive method, while the civil law system is imbued with the deductive method For instance, judges in France, and Germany decide cases by applying the particuiar given general rules of the codified codes enacted by legislation to the speciíic circưmstances In line with their inductive legal method, English judges must start with the actual issues and compare them with the same or similar legal issues that have been dealt with by courts in previously decided cases and from these relevant precedents the judges decide by means of induction 4 Even though the common law systems and the civil law systems are moving closer and are also interacting with each other, in terms of legal method, there

is still a major difference between them There are many cases in the common law systems where no statutory rules apply Instead, the law is developed from all the relevant cases that have been determined in the past.25

From a terminological point o f view, the expression “case-law” is used in the civil law system with the same meaning as the term “precedent” in the common law

As Peter de Cruz said, the term “case-law” refers to a body o f non-statutory rules as declared, or developed by a judicial decision In this thesis, the terms “case-law” and

“precedent” will be sometimes used with the same meaning

Case-law plays a mạịor role in the everyday operation of the civil law systems, because general rules in statutory lavvs need to be interpreted by courts.26 The high level o f codification in some European countries produced many general legal principles and abstract legal norms in their legal systems No system, hovvever, possesses a vvritten law governing all conceivable disputes The use of case-law as a method o f statutory interpretation becomes indispensable, even in the civil legal system The controversial question then arises as to vvhether judges in a civil law country can actually make law within the trial process The point will be considered when we analyze the operation o f the judicial system o f civil law jurisdictions, the French or German legal system, for example At the intemational level, case-law also plays an important role in the everyday operations o f the European Court o f Justice (E.C.J) Unlike judges in Continental Europe, the judges o f the E.C.J are not reluctant

to use case-law to fíll gaps in the vvritten laws vvithin the framework o f the European law.27

In summary, it would be a mistake to contrast the role o f precedent in a civil law system and that o f a common law system by keeping the traditional view that precedent plays no role at all in the codiíied civil lavv system, whereas precedent is only used by judges in the common law system It would also be false to think that in

23 M.A Glendon;M.W.Gordon; P.G.Carozza, supra note 10, p 259.

24 Michael Bogdan, Comparative Lavv, KluwerNorstedts Juridik Tano, 1994, p.l 15.

25 E.Allan Famsworth, An Introduction To The Legal System o f The United States, Oceana Pubs, 3rd Edition,1996, p.p 47-59.

26 M.A Glendon;M.W.Gordon;P.G.Carozza, supra note 10, p.130.

27 Ibid., p.256.

a civil law system the vvritten law is laid down by legislation and the decisions of the courts only play a minor role Equally wrong is it to suggest on the other hand that in the common law systems, the whole of the law is derived from decisions o f the courts and the legislator has hardly any role to play According to J.G Sauveplanne, both the civil and common law systems are based on a mixture of statute and judge made law The difference is more that in civil law systems the starting point for legal reasoning

is the provision of the statutory law, whereas in common law systems the starting point can be earlier decisions o f the court.28

2.2 Ideology of Judicial Decision - Making

The notion o f precedent plays an important role in the jurisprudence of every Western iegal system and a pivotal role in systems rooted in the common law

tradition From a historical perspective,y«s commune was recognized as a kind o f law

in Europe prior to the movement of codiíication o f law which started in the beginning

o f the 20 century It was said that ju s commune was the common law throughout the

European continent.29 When the codifícation movement took place in many legal systems such as the French30 and the German legal systems,31 the system o f precedent was formally abolished When codified codes appeared they were regarded as means for enhancing legal uniíìcation and for creating completeness o f the law However, codifíed codes produce their disadvantages in applying them to the facts, because the general rules contained in the codified codes were unclear and ambiguous Thus, it was very difficult to apply them to the speciíìc circumstances32 To deal with this situation judges had to interpret the statutory rules to adapt those unclear, ambiguous,

28 J.G Sauveplanne, Codified And Judge Made L a w , The Role O f Courts And Legislators In Civil And Common Law Systems, North-Holland Publishing Company, 1982, p.95.

29 Ewoud Hondius , General Report, In Precedent and The Law, Bruylant Bruxelles, 2007, p 12.

30 Since the beginning o f the nineteenth century, the codiíication o f law has been an important feature

o f the French legal system Consequently, major codes were enacted: the Civil Code o f 1084; the Commercial Code o f 1807 and the Criminal Code o f 1810.

31 In Germany, som e codifíed codes were enacted, such as the German Civil Code o f 1900 (BGB) andthe Code o f Civil Procedure o f 1877 (ZPO), the Penal Code o f 1871 and the Code o f Criminal Procedure o f 1877.

32 Recently, research has shown ‘[a]!l codified systems have for long fully acknowledged the need for interpretation, for it is necessary to resolve emerging ambiguities, obscurities and indeterminacy in the provisions o f the codes.’ See: Zeno Bankowski, D.Neil MacCormick, Lech Moravvski, Alfonso Ruiz Miguel and Rationales for Precedent, in ‘Interpreting Precedents A Comparative Study’, Edited by D.Neil MacConnick and R s Summers, Ashgate Publishing Company, 1997, p.484.

For example, section 463(2) o f German Civil Code (BGB) provides that the buyer o f a thing is entitled to compensation if a defect in the thing has been maliciously concealed from him But the Code does not provide any complementary rule to explain what it means by malicious concealment In

1907 the Reichsgericht explained the meaning o f section 463 (2) in a concrete case See: Robert Alexy

and Ralph Dreier, Statutory Interpretation In The Federal Republic O f Germany, in ‘Interpreting Statutes A Comparative Study’, Edited by D.Neil MacCormick and Robert S.Summers, Dartmounth Publishing Company, 1991 ,p.79.

and outdated rules to the changing social and economic situation In doing so judges create precedents through judicial decision-making.

Under the perspective of the philosophy of law, Jerzy Wróblewski33 has classiíied three distinct ideologies o f judicial decision-making, namely the ideology

o f bound judicial decision-making; the ideology o f free judicial decision-making; and the ideology o f legal and rational judicial decision- making

2.2.1 Ideology of Bound Judicial Decision-Making

As Jerzy Wróblewski wrote ‘[t]he ideology of bound judicial decision making

is a very simple doctrine o f the source o f law and it can be summarized brieíly: the unique primary source o f law is a statute in the formal sense o f this term; judicial decisions have to be based on the statutory rules.”34

The essence o f the ideology o f bound judicial decision-making is the notion that the law o f a legal system is conceived as a closed, consistent, and complete system o f general and abstract norms of statutory lavv as enacted by parliament.35 If

we approach the function of the judiciary under the principle o f the separation of powers applied in a legal system, the legislature has the function o f making law and it cannot create Iaw as the legislature does A law-creating role for judges is thereíòre not acceptable As Montesquieu said, the judges are only the mouth vvhich proclaims the already existent íòrmulation of the lavv According to this point o f view, judicial decisions by judges are not regarded as law which can be compared in any way to a statutory law At the time o f the French Revolution, the judicial íunction was conceived of as the mere application of statutes, by way of syllogisms.36 Under the iníluence o f this principle, Article 5 o f the French Civil Code o f 1804 explicitly forbids judges from laying dow n general principles in the course of deciding cases.37 This is an extreme example o f the ideology o f bound judicial decision-making But in reality, today judicial decision-making o f French judges is not absolutely bound by Article 5 For more than two hundred years, precedents of French civil law, especially

those coming from the French Supreme Court (Cour de Cassation) are highly

respected in interpreting the Civil Code I agree with Raimo Siltala in concluding that

‘[t]oday such extreme formalism in judicial decision-making is often taken as a textbook example o f legal fíction.’38Unlike Article 5 o f the French Civil Code, Article

1 o f the Swiss Civil Code vvhich enacted a century later than the French Civil Code, Article 1 o f the Swiss Civil Code expressly directs the judge, in the absence of statutory provision or customary law, to decide in accordance vvith rules which he

33 Jerzy Wróblewski is a Polish legal philosopher.

34 Wróblewski, The Judicial Application ofL aw , Kluwer 1992, p.p 273-314.

35 Raimo Siltala, supra note 2,p.2.

36 Michel Troper and Christophe Grzegorczyk, supra note 16, p 103.

37 Peter de Cruz, Comparative Lavv in a Changing World, Cavendish Publishing, 1999, p.242.

38 Raimo Siltala, supra note 2,p.4.

would lay down, if he had himself to act as legislator and in doing so, be guided by approved legal doctrine and case law.39

Today in most civil lavv systems, the ideology o f bound judicial decision- making has becomes less rigid than it was in the nineteenth century The evidence shows judges have limited discretionary povver to make law This power was either deliberately delegated to the courts by Parliament or came into eíĩect as a result of the interaction between the demand of adapting lavv to the changing social and economic conditions and the Aexible legal standards laid down by the legislature

A response to the strict ideologv of bound judicial decision-making can be found in the theory o f legal positivism ° Hans Kelsen (1881-1973) considered that the application o f a statutory law or any other legal norm might be exercised by giving some discretion to adjudicative function o f judges.41 Supporting this point, H.L.A Hart (1907-1992) pointed out that judges inevitably use their discretion to make new law, on the occasion where the legal rules have ‘open texture’ He also noted that judicial law-making at the margin was a good thing, giving needed Aexibility to the application of legal rules.42

2.2.2 Ideology Of Free Judicial Decision-Making

The ideology of free judicial decision-making emphasizes the role o f the judges who are not bound by legislative rules when they decide cases One could almost say that the role o f the legislator in the creation of valid legal norms is belittled when the role o f making law is conferred on the judges According to Jerzy Wróblewski, the ideology of free judicial decision was an expression of the revolt against legal formalism and this idea was inspired by the shortcoming o f the legal positivism o f the nineteenth century.43 One o f the intellectual movements which support the idea o f free judicial decision-making is legal realism44 It derives from the fact that when statutory laws consist of many general and ambiguous principles, the

39 Peter de Cruz, supra note 37, p 242.

40 Legal positivism is based on the simple assertion that the proper description o f law is a worthy objective, a task to be kept free from moral judgment Legal positivists include Thomas Hobbes (1588- 1679); David Hume (1711-1776); Jeremy Bentham (1748- 1832) and John Austin (1790-1859) Hans Kelsen (1883-1973) and H.L.A Hart (1907-1992) represented post-modem legal positivism.

41 Brian Bix, Jurisprudence Theory And Context, Third edition, London Svveet & Maxwell, 2003, p.p 57-60.

42 Ibid.,p.pA 5-55.

43 Raimo Siltala, supra note 2,p.4.

44 Legal realism derived from a group o f American legal theorists in the 1920s, 30s and 40s Their iníluence on legal thinking, particularly in the United State, but also elsewhere, can be summarized by the phrase “w e are all realists now” Oliver Wendell Holmes Jr (1841-1935) was the most famous legal realist in America The main íòcus o f legal realism was on judicial decision - making It considered that a proper understanding o f judicial decision-making vvould show that it was fact-centred and that judges’ decisions were often based (consciously and unconsciously) on personal or political biases and constructed ÍTom hunches.

judges have to elaborate these principles for them to be applicable to the cases in hand.

As Raimo Siltala states ‘[a]n increased use of general clauses in legislation has denoted a more or less open delegation o f norm creating power from the legislature to the courts o f justice and the general beiief in the formal values of legal positivism may also be on the wane among citizens Instead of the íòrmal characteristic o f law, the ideology of free judicial decision-making underscores the dynamic characteristic o f jurisdiction, its responsiveness to the problem of the real world “out there”.’45

The ideology o f free judicial decision-making has been criticized on the ground that if the judges are not strictly bound by the legislators’ law, they will have unlimited discretion wlìich will, thereíore, cause danger both for the principle of the rule o f law and the separation of povvers Nonetheless, Jerzy Wróblewski is in favour

o f the ideology o f free judicial decision-making rather than the bound altemative.46 I

do not agree with this point of view Because the principle o f rule o f law is now widely accepted in most legal systems, if judges are free to decide cases in any way, the law in a legal system will not be unified

2.2.3 Ideology of Legal And Rational Judicial Decision-Making.

According to Jerzy Wróblewski, the ideology o f legal and rational judicial decision-making is ideally situated between the bound and free ideologies o f legal adjudication.47 The idea is that judges, on the One hand, base their decisions on very formal legal rules On the other hand, judges have to take into consideration of hovv to make their decisions reasonable The ideology of legal and rational judicial decision- making encourages the judge’s adjudicative activities to meet dual criteria The fưst

is the demand for the legality of judicial decisions The second is that any judicial decision, especially in complicated cases, must be based on the rationality of law that

is the ultimate ground of legal justifiability Hovvever, the question is how to deíine legal rationality According Jerzy Wróblewski, among other things, there are two points need to be considered in judicial decision-making They are legaiity and rationality o f a judicial decision Legality o f a judicial decision shovvs conformity of legal ground for deciding the case with the requirement o f the law in force, while rationality o f a judicial decision concems on the intemal and extemal premises o f legal justifícation.48

It seems to me that it is hard to identify the rationality o f a judicial decision and the concept of legal rationality itself is problematic The latter concept was considered by Max Weber, who wrote that.‘[S]substantive rationality o f law means

45 Raimo Siltala, supra note 2, p.5.

46 Raimo Siltala, supra note 2, p.5.

47 íbicL, p.6.

48 Wróblewski, The Judicial Application o f Law, Kluwer,1992, 317-111, quoted in Raimo Siltala,

supra note 2, p.6.

that the decision o f a legal problem is iníluenced by norms different from those obtained through logical generalization of abstract interpretation o f meaning The norm to which substantive rationality accords predominance includes ethical imperatives, utilitarian and other expediential rules and political maxims, all of vvhich diverge from the íormalism.’49

One could also argue that for a judicial decision to be based on legal rationality, the decision must not be iníluenced by any arbitrariness on the part of the decision maker (the judge) In other vvords, we can measure the legal rationality o f a decision by excluding what is iưational in it A judicial decision is irrational if it is unreasonable; if it lacks ostensible logic or if it lacks comprehensive justification.50

The issue o f how to identiĩy legal rationality leads to never-ending debates It would be more practical to consider legal rationality in concrete situations In terms

of following precedent, I will elaborate the legal rationality o f judicial decisions in selected legal systems in a comparative perspective in Part II and III o f this thesis

Regarding the ideology of judicial decision-making, I agree with Jerzy Wróblewski that no ideology o f judicial decision-making is able to draw the conceptual boundary o f legality o f judicial decision Because, there are no general accepted criteria for deíining each type of judicial decision-making which I mentioned above

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httD://duncankennedv.neưdocuments/The%20Disenchantment%20of%2ŨLoqically%20Forma l%20Leaal%20Rationalitv.pdf (September 20,2008)

50 http://hcrai.nic.in/Obiectivitvandlmpartialitv pps(September 20,2008)

Chapter 3 Theory of Precedent In The Common Law System

3.1 Introduction

It would be proper if we start with what is meant by the common law system The term ‘common law system’ refers to certain legal systems that include the English legal system and those legal systems iníluenced by English law, the main examples being the United States, Canada, Australia and New Zealand Originally, the term common law derived from English Iaw Common law is a part of English law As Geoffrey Samuel expresses it ‘[c]ommon law has a variety o f meanings, but

in the context of comparative law it is usually used to denominate the legal family or tradition associated with Anglo-American legal systems.’51 In term of legal terminology, it would be necessary to understand the meaning o f ‘common law’,

which, translated into Latin or French, means Jus commune or Droit commun

respectively These legal terms took their senses vvithin a European context, as developed vvithin a framework where Roman law was taught in European universities

from the 121*1 to 19th centuries Jus commune vvas used to express the inductively

derived common law arising from the iníluence o f Roman law which constituted a common body o f law, legal commentaries, legal language, language and the approach

to teaching law.52 It was what the European systems then had in common

The meaning o f common law in England is rather different There, common law is contrasted to statutory law; it represents that part o f the law vvhich is contained

in the decision o f the courts, rather than on enactment by Parliament In terms of legal method, common law is a judge made-law: the incremental development o f law arises from judges deciding particular cases, with each decisỉon being shown to be consistent with earlier decisions o f the higher courts English common law was also at the origin o f all common law systems, so I will start with the theory o f precedent in English law

Legal scholars in both common lavv countries and other jurisdictions pay much attention to the theory o f precedent As Gerald J.Postema wrote, precedent is the life blood o f any legal system.53 This statement seems to be supported by most legal scholars who study the role of precedent in the common law system Case laws and precedents pervade all branches of the law in England But therevvas no agreement on how to formulate the theory o f precedent in the common law system This is explained in part by the absence of uniformity o f practice in the interpretation

of statutes and the great variety o f rules and doctrines which relate to the issue o f precedent it was said that ‘[t]here is no actual uniíbrm operation o f the English court conceming the operation o f precedent.,54From the historical point of view, the theory

51 Geoffrey Samuel, Common law, in Elgar Encyclopedia O f Comparative Law, Edited by Jan M Smits, Edward Elgar, 2006,p l45.

52 Peter de Cruz, supra note 37, p.p 48-60.

53 Gerald J Postema, Roots O íO u rN otion OfPrecedent, In ‘Precedent In Law’, Edited by Laurence Goldstein, Clarendon Press- Oxíbrd, 1987,p.p.10-15.

54 James Louis Montrose, Precedent in English Law and Other Essays, Shannon Ireland, 1968, p.l 1.

of precedent has been discussed by such famous common law scholars as Coke, Hale, Hobbes and Bentham We can divide their ideas about precedent into different schools as follows.

3.2 The Traditionaỉ Concept of Precedent

The traditional concept of precedent is to be found in the work of some famous scholars in the fíeld of common law jurisprudence They include Davies and Coke in the seventeenth century and Blackstone in the eighteenth

Their notion o f precedent comes from their conception about the common law

in general According to Davies, the common law o f England is nothing else but the common custom of the Realm in which the law is combined with common usages.55

Coke considered that, unlike statute, common law is the product of a disciplined process o f reasoning and reílection on common experience Coke emphasized the wisdom o f judges, excellent men who shaped the law during their years in office According to Coke, ‘[r]eason is the life o f the law’.56 In the eighteenth century, Blackstone said ‘the decisions of courts o f justice are the evidence o f what is common law’.57 His main conception of the law is that is based on common principles and customs He noted that the judges had the vvisdom to recognize what was the law The wisdom o f the judges was a product o f their intelligence and their experience in exercising their adjudicative duties The famous work ‘Commentaries

on the law o f England’ that Blackstone left for later generations contains a comprehensive analysis o f the common law in England as based on precedents It was said that Blackstone’s book, for the first time, made English lavv readable and intelligible to the lay mind.58 Blackstone noted the existing comraon customs which judges relied on to decide the cases at hand The wisdom or the goodness o f a custom

is a product o f time and o f the process of reíìnement that the English judges have added

Based on these views of the common law, the traditional conception of precedent could be described as follows:

(1) Precedents are past decisions that have authority because they have been decided and settled and have a place vvithin a recognized body o f common experience

(2) Precedents are not statutory rules but they illustrate the operation of weighing reasons to determine the law Precedents function as a means for judges in subsequent cases; they decide the new case by determining the rule of the previous

55 Sir John Davies, Irish Reports (1612), Introduction , quoted by J.A.G Pacock in The Ancient

Constitution And The Feudal Law, Cambridge,1957, p.p.3-32.

56 Coke, Seventh Reports, p.7; Institutes, I, Sec.138 quoted by Gerald J.Postema, Roots O f Our Nation

O f Precedent, In ‘Precedent In Law’, Edited by Laurence Goldstein, Clarendon Press- Oxíòrd,

1987.P 19.

57 Com m entariesílS* ed.) On The Law o f England, Vol I, p.p 88-89.

58 http://www.berkshirehistorv.com/bios/wblackstone.html ( Downloaded on July 12, 2008)

decisions and íbllovving it as a rule Judges also rely on previous decision when giving reasons.

The traditional conception of precedent claims authority for precedent but no reason is given why precedents have binding íorce on later cases It is simply said that something stands behind the decisions, justifying them, guiding them and giving them authority as law.59

3.3 The Positivist Theory Of Precedent

Legal positivism is based on the simple assertion that the proper description of law is a vvorthy objective and the question of what is the law is separate from and must be kept separate from, the question of what the law should be

Thomas Hobbes (1588-1679) is one of the positivist scholars who attacked the conception o f law found in Coke.60 According to Hobbes, the common law was not based on reason The law was not made by the wisdom of the judge Hobbes explained that law consists of commands or prohibitions, the contents o f which are indisputable He said that there was nothing special about the reasoning of lavvyers and judges It was simply natural reason, which every competent person could exercise, applied to the subject o f law.61 Hobbes also equated law with the natural reason o f the sovereign For him, the nature of law was to be found in command but this was not reason as in Coke’s conception Hobbes argued that there were no universal standards o f reason and if individual judges were to act on his or her own reason, there would be conílict between individuals and within the collective Although Hobbes did not accept the prevailing notion o f precedent, his theory explains why precedent still has a role as law His point o f vievv was elucidated by Postema as follow:

‘[A]lthough Hobbes himself was contemptuous o f the prevailing notion of precedent, his theory provides the material for a distinctively positivist interpretation

of this notion All law is command and all law-making authority rests ultimately in the sovereign, but the sovereign delegates his authority (either explicitly or implicitly)

to the courts Where the law is silent, where there is no directly declared will of the sovereign, judges are authorized to declare law in his name in the course of adjudicating particular cases In doing so, judges mimic the sovereign Through the exercise o f their own ‘natural reason’ in the course o f deciding the particular cases they establish new rules of lavv, rules which are thereby authoritative and peremptory

in the same vvays as the sovereign’s commands are’.62

Another positivist scholar vvas Jeremy Bentham (1748-1832)63who greatly

contributed to the development o f statutory law in England On the one hand,

59 Roger Cotterrell, The Politics o f Jurisprudence A Critical Introduction To Legal Philosophy, Second edition, Lexis N exis™ UK, 1989,p.23.

ỔOBrian Bix, su pra note 41,p.p.33-53.

61 Gerald J.Postema, Supra nõte 53, p 12.

62Ibid., p.13.

63 Brian Bix, supra note 41, p.33.

Bentham argued that the law-making function must be vested in the legislative body According to him, the task of law is to provide a stable frame-work of publicly recognized rules Such a frame-work would have to be one o f statutory law He did not approve o f scattered rules o f common law which derive from numerous precedents On the other hand, Bentham argued that to some extent, precedent has the same effect as a law The rules o f law, seen now as precedents, must be extracted from particular decisions by a process o f ‘abstraction’.6

In the tvventieth century, the position o f H.L.A Hart (1907-1992) was

regarded as the main representative o f legal positivism.65 But Hart moved legal positivism in a different direction While he continued to insist on the importance of the separation o f law and morality, he criticized the view o f the earlier form of positivism.66 Hart introduced the concept of a rule of recognition: a set o f criteria by which officials determine which rules are and which rules are not part of the legal system Hart defined the legal system as a Union o f two kinds o f rules: primary rules

o f obligation and secondary rules o f recognition, change and adịudication He considered that the secondary rules of change confer power on certain authorities, jưdges among them, to issue, alter or derogate from the valid rule of obligation The concept of law, for Hart, includes the secondary rules o f adjudication, which lay down the procedure to be observed when primary rules o f obligation are applied and eníorced in the court of justice The rules of recognition, in Hart’s theory, are rules of law which are identifíed by judges as being valid obligatory rules.67 Thus, judicial precedent becomes a kind o f law

Hart concluded that judges must inevitably use their discretion to make new law, on occasions where legal rules have an opcn texture He also noted that judicial law-making at the margins was a good thing, giving much needed ílexibility to the application o f legal rules.155

Based on its conception o f common law rules, positivism promotes a theory that precedent stands for or embodies general rules (these rules being derived from or embedded in the judicial decisions o f the courts) These rules are authoritative The practical value o f using precedent in subsequent cases is high and vvhat is more, legal rules derived from precedent can provide legal certainty and legal predictability regarding matters with the same or similar facts

3.4 American Legal Realỉsm

Legal realism was a movement that ílourished in the 1920s to the 1940s in America.6 It had a great iníluence on American jurisprudence in the twentieth century which has lasted up to the present time American iegal realism ultimately traces itself back to the work o f Oliver Wendell Holmes Jr (1841-1935) vvho wrote

64 Gerald J.Postema, supra note 53, p 14.

65 Brian Bix, supra note 53, p.35.

66 Raimo Siltala, supra note 2,p.p.9-11.

61 Ibid, p.10.

68 Brian Bix, supra note 41,p.44.

69 Ib id , p 177.

most o f his iníluential work in the earlier part of his life.70 Being iníluenced by the traditional theory o f common law, Holmes wrote that the life of iaw has not been logic: it has been experience.

Regarding the role of precedent in law, legal realism íòcused on judicial decision-making and asked how it could reach a correct decision To enhance a realistic approach, legal realism criticized the notion that judicial decisions were based on general rules by vvay o f the deductive method.71 Thus, legal realism called for judicial decision-making that needs to take into account both the law and the precedents to be íòund in the past This also encouraged the teaching o f law by case method In this method, law students are taught different subjects of law by reading a series of decisions, mainly of the appellate courts, and then analyzing rationales offered by the courts to their decisions

Common features o f the arguments of legal realists are that judges often have discretion, that judicial decisions are oíìten in practice determined by factors other than legal rules and a shift in the focus from conceptual analysis to policy-based

arguments and fact-fĩnding The landmark case of United States V E.c Knighí 156

U.S 1 (1895)72, the so-calỉếd “The Sugar Trust case”, helped the arguments o f legal realism to ílourish when they established that the U.S Supreme Court decided the case not by relying on the Sherman Antitrust Act (1890) but basically on its own reasons The Court ruled that manufacturing was not considered an area that was regulated by Congress pursuant to the Interstate commerce clause

Legal realism, furthermore, required judges to leam more social Science to understand how people actually behave and the way in which legal rules reílect and affect behaviors Merely following precedent is not enough for a judge to decide the case before him Berỹamin Kaplan says that ‘[j]udges, in fact, follow their instincts in deciding cases, making sham references to rules o f law; generally they are themselves

70 R oscoe Pound, The Scope and Purpose o f Sociological Jurisprudence (Pt I), 24 Harvard Law

Review, 1911,p.591.

71 Brian Bix, supra note 41,p l80.

72 United States V E.c Knight 156 U.S 1 (1895) knovvn as The “Sugar Trust Case” was decided by the U.S Supreme Court and limited the Govem ment’s power to control monopolies The case was under the Sherman Antitrust Act, enacted by Congress in 1890, as an attempt to curb concentrations o f econom ic power that signiíicantly reduced competition between businesses One o f its main provisions outlaws all trade combinations or agreements that severely restrict trade betvveen states or with foreign powers The facts o f the case are that in 1892 the American Sugar Reíining Company gained control o f the E c Knight Company and several other sugar companies At the end o f this expansion, the American Sugar Reíining Company controlled 98 percent o f the nation’s sugar reíining capacity President Grover Cleveland (in his second term 1893-1897) directed the Government to precede under the provisions o f the Sherman Antitrust Act to prevent the rise o f m onopolies by vvay o f acquisition The U.S Supreme Court rejected the Govemment’s claim by ruling that manufacturing in this case vvas not subject to congressional regulation o f Interstate commerce but to the regulations o f the individual states See: http://supreme.justia.cOm/us/156/l/case.html.

unavvare of what they are doing and persist íbolishly in believing that they are being obedient to precedent.’73

3 5 Why Is Precedent Followed By Judges?

The term ‘precedent’ has a meaning outside the legal sector Human conducts

in general is largely based upon past experience The question arises why precedents are followed in law In the common law countries judges follow precedents , because there is a traditional custom that requires judges respect precedent in law Precedent is regarded as a source of law so judges of inferior courts have to respect the previous decisions o f the higher ones In the civil lavv system, although precedent is not regarded as a íòrmal source o f law, the precedents of the Supreme Court in a civil law system has at least persuasive authority for the lower courts to consider

The íirst reason why judges follow precedent is the need for logical consistency According to Theodore M Beditt if a decision-maker has an affirmative reason to decide a case differently from a similar case he has previously decided, it would be inconsistent with the earlier decision.74 In the common law system, for example in English legal system, the doctrine of precedent requires judges o f lower courts to follow decisions of higher appellate courts and a decision o f the final appellate courts should not deviate from its own preceđents.75 This requirement seems

to be impossible to carry out in an exhaustive manner, because it seems unreasonable for a judges to follow an earlier decision vvhen he or she believe that the decision was made by a mistake It is perceived as unfair when a judge has to abide by a mistake of precedent rather than correct it by creating a new precedent According to Richard Ward, the most obvious disadvantage o f the English Iaw system is its inherent rigidity, which may occasionally cause hardship coupled with the vast and ever increasing bulk of reported cases from which the courts have to determine the law When the rules o f law derive from a system of precedent, basic principles tend to be obscured.76

The second reason for following precedent is that justice requires it The essence o f this point is that like cases must be treated alike or else someone is being treated unfairly Thus, judges must treat the parties in a case the same as the parties in the earlier case were treated There is a question regarding how to determine the criteria for two cases to be similar In fact, earlier decisions often indicate and fíx the features which will allow later judges to determine if the relevant similarities are appearing in later cases That is why the solution to a particular case is a solution to similar cases in the future

73 Benjamin Kaplan, Do Intermediate Appellate Courts Have A Lawmaking Function, Massachusetts Law Review, 1985, p.10.

74 Theodore M.Benditt, the Rule o f Precedent, in ‘Precedent In L aw \ Edited by Laurence Goldstein, Clarendon Press, Oxíòrd, 1987.p.90.

75 Ibid,.p.90.

76 Richard Ward, Walker and Walker’s English Legal System, Buttervvorths, Eight Edition, 1998, p.63.

The third reason for following precedent is associated with the idea of enhancing stability in the legal system There is a need for legal certainty and predictability But respecting the stability of the legal system may restrain developments in the law when there is an actual demand to change the law in order to cope with changes o f economic and social conditions that do not fit the facts and legal rules yielded by previous decisions The law, in principle, needs to adapt to social change and there should be a balance betvveen the need for stability and uniíòrmity and the need for ílexibility The law cannot be static and, in many circumstances precedents must be overruled under the attack o f sufficient reasons for legal development This point o f view will be elucidated in Parts II and III of this thesis.

Chapter 4 The Theory Of Precedent In The Civil Law System

4.1 Introduction

Traditionally, the civil law system has been seen as a codiíied system This means that only codes and legislation, but not precedents, count as íòrmal sources of

law Likewise, there is no doctrine of stare decisis like the one rooted in the common

law systems As noted by D.Neil MacCormick and Robert S.Summers the persistent denial by civil lavvyers that judicial decision is a source o f law in their system has produced a vital distinction betvveen the doctrines of precedent in common law and civil law countries: the lower courts in the latter are not íòrmally bound by higher courts’ precedents.77 This does not mean that there has never been a theory of precedent in civil law systems, containing a rationale for the limited role o f precedent Indeed, in some legal systems, namely the German and the French, theories about precedent in law do exist I will now brieíly introduce some theories on precedent which have had iníluence on jurisprudence in German and France

4.2 The Historical School In Germany

The historical school was a movement that had considerable iníluence on German legal development during the nineteenth and the twentieth centuries The position o f precedent was discussed by German legal scholars within this movement Among them, Friedrich Carl von Savigny (1779-1861) was indeed One o f the most respected legal scholars in the historical lavv school.78 His position on sources of law, especially the role of judicial decisions, had great inAuence on German jurisprudence Even today, Savigny’s views on the role o f precedent are of both theoretical and practical value In his famous book ‘On the Vocation o f Our Time for Legislation and Jurisprudence’, he provided the framework vvithin vvhich the problem o f precedent and judge-made law was discussed.79 The core of his view of precedent is that the entire law represents the common conviction of a nation, or in case o f international law, of the community of nations He regarded not only the legislator but also the jurist as representatives o f the people when making what he called ‘scholarly law’ or ‘Science of law’ The term ‘scholarly law’, according to Savigny, is synonymous with ‘practical law’, the law made by judges In Savigny’s time, the movement o f codification of law was dominant in France, and Germany This gave rise to problems for judges who found difficulties in applying the general principles in codes or statutory law to various concrete situations Thus, it became

77 Hans w Baade, Stare Decisis In Civil-law Countries: The Last Bastion, in ‘The Themes In Comparative Law In Honour O f Bemard Rudden, Edited by Peter Birks and Arianna Pretto, Oxford University Press, 2000, p.3.

78 Robert A lexy, R alf Dreier, Precedent In The Federal Republic O f Germany, in ‘Interpreting Precedents A Comparative Study’, Edited by MacCormick and R s Summers, Ashgate Publishing Company, 1997, p.p 40-41.

19Ibid., p 41.

acceptable for judges to create a new norm by way of deduction from the general principles provided in codes or other enacted law Savigny deemed that ‘[t]he law of jurists originates in two ways: fưst by íĩnding principles o f the law and deducing consequence from them, thus producing nevv norms by elaborating the latent content

o f positive law and second, by establishing leading scholarly opinions and established usages o f the court.’80

Overall, Savigny and his followers put forward a theory o f precedent that supported judge made-law in the context of the German legal system at that time This had a signiĩicant iníluence on jurisprudence in Germany Bemhard Windscheid (1817-1892), a representative of the late phase of the Historical school, introduced the theory o f gap-filling in which he analyzed the practicality of judicial decision-making and the possible authority and practical force of a single precedent, varying vvith the quality o f its reasoning.81

4.3 The Positivist Theory of Precedent

The positivist theory of precedent was elaborated by several leading positivists, chief among them Laband, Bergbohm and Kelsen, in the second half of the nineteenth and throughout the twentieth century Hans Kelsen (1881-1973), an Austrian legal theorist, is noted for his so-called ‘Pure Theory o f Law ’.82 Kelsen’s theory is vvell known not only in Europe but also in America He spent the last decades o f his long, productive life in the United States o f America, having escaped Europe at the time o f Hitler’s rise to power

Regarding the role o f precedent, Kelsen basically íòcuses on considering

‘what and how the law is, not how it ought to be’.83 In his view, law could be vievved

in two aspects that go together to create the pure theory o f law: the static aspect of law - what law is at any given moment - and the dynamic aspect o f law - how the legal system tunctions over time.84 Kelsen and his fellows argued in favor of judge- made law by claiming that, when the legislature enacts statutory law, this is only an attempt to create pure law which always needs to be realized and completed by judges.85

80 I b id ,p 4 l.

&lIb id ,p A 2

82 Brian Bix, supra note 41, p.55.

83 Dhananjai Shivakumar; The Pure Theory As Ideal Type: Defending Kelsen On The Basis O f Weberian M ethodology, Yale Law Joumal, Vol.105, 1996.

84 Ibĩd.7

85 Peter W esley-Smith, Theory O f Adjudication And The Status O f Stare D ecisis, in ‘Precedent In

L a w \ Edited by Laurence Goldstein, Clarendon Press, Oxíòrd, 1987.p.77.

4.4 The Theory of Precedent In France

French law is codiíled, as is the case in most civil law systems The great process o f legal codiíication took place throughout the nineteenth century, beginning vvith the famous French Civil Code o f 1804 It was the success o f the codifícation of French Civil law that encouraged the view that most areas of private law and public were govemed by codiíied codes One o f the advantages of legal codiíĩcation was to

be systematic, expressed in clear and technical terminology The codiíied codes would lay down broad principles and avoid casuistry Although today’s codes do not have the same prestige as they had in the nineteenth century, they are still regarded as the primary source o f law and serve as essential day to day working instruments for French lawyers.86 The French legal system clearly thereíòre needs a proper theory of precedent if precedent is to play any role Such a theory would also help in the comparative understanding of the differing role of precedent in common law and civil law countries

Eva Steiner has synthesized the views surrounding the theory o f precedent in France in her book so called ‘French Legal Method’ Steiner discussed the reasons for

acknowledging precedent (ịurisprudence) when precedents were to be regarded as a

source o f law and she associated precedent with the normative power of judicial decision making She explained that ‘[i]nvestigation o f the issue o f whether

jurisprudence is a source o f law is unavoidable as it touches upon other problems

posed by case law in France What is the nature of the relationship betvveen judge- made law and legislation in a system such as that o f France, which over-emphasizes enacted law? And how in such a system can judicial lavv making be legitimated?’87

Eva Steiner focuses on the following points in discussing about precedent in French law They are the issue of status of precedent in the French legal system;

factors produce vveight on precedents; the relation betvveen precedent (ịurisprudence)

and legislative law; and the legitimacy o f precedent

First o f all, the starting point is that the judge is not allowed to make law and thus trespass on the law-making function of the legislature Following this doctrine, the judges only have a role when applying the law but not in making lavv It was said that the idea o f Montesquieu had great iníluence on the formal theory o f French law with his notion that ‘every judge is regarded as the mouth that pronounces the words

of la w \ Being iníluenced by this idea, Article 5 of French Civil Code 1804 provides that judges are forbidden from making general or regulatory decisions in respect of

the cases coming before them Further, there is no rule o f stare decisis in French law

For all that, in some areas o f law, such as French administrative law developed with frequent use o f precedents of French administrative courts The practice o f precedent

o f French administrative courts will be given in Part III o f this thesis

Secondly, Steiner considers that there are a certain number o f factors which contribute to ascribing a certain degree o f normative force to precedent: the rank in

86 Eva Steiner, French Legal Method, Oxford University Press, 2002,p.29.

87 Ibid.,p.76.

the hierarchy o f the court which gives the decision to be followed; the extent to which

it departs from previous decisions; vvhether judges have to respect a principle of general application relating to a consistent line o f earlier decisions.88

Thirdly, the predominant view o f the relationship betvveen precedent and legislative law is that the latter prevails over the former Steiner argues that there should be a more dialectic approach to this issue, the two type’s sources of law complementing One another.89

Fourthly, regarding the legitimacy o f judicial law making, Steiner considered two views on whether judicial law making should be accepted or not She favors validating judge-made law where there is a gap in the lavv or the law is ambiguous In some circumstances, judges are inevitably forced to make rules if they are to provide a solution to a new legal situation which has never govemed by the law 90

In France, other authors divide precedents into two types: precedent of solution and precedents o f interpretation 1 Clearly, the latter is more likely to be accepted if it ties in with the demand to unify the law

P a r tll Precedent In The Common Law System Chapter 5 Precedent in the English Legal System

5.1 Introductỉon to The English Common Law

The history o f the English legal system undervvent a signiíĩcant change after the Norman conquest, because before 1066, there was no unitary, national legal system at all in England It was said that ‘[t]he common law had been largely established by the accession to throne of Edward I in 1272 The King’s court had its role in creating common lavv throughout the country.’92 This kind o f law gradually superseded customary laws which were also applied in the various regions at that time The term common law vvas used to distinguish the law that was created via decisions of the Royal Courts in London and which was applied throughout the Kingdom (thus a common approach to law) from ecclesiastical (Church) law (which

92 Gary Slapper, David Kelley, Q&A Series The English Legal System, The 6* Edition, Routledge Cavendish, 2006,p.5.