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Unpublished Paper
Judicial Precedents in Civil Law Systems: A Dynamic Analysis
George Mason Law & Economics Research Paper No. 04-15 (2004)
  • Francesco Parisi, University of Minnesota - Twin Cities
  • Vincy Fon
Abstract

The effect of Civil law doctrines of precedent on the process of formation and evolution of case law is examined. Unlike the Common law systems, Civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, no single decision binds a court and no relevance is given to split jurisprudence. Once uniform case law develops, courts treat precedents as a source of "soft" law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although Civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation, corrosion and stability of legal rules. The effect of different doctrines of precedent on the patterns of evolution of the legal system is studied.

Disciplines
Publication Date
2004
Citation Information
Francesco Parisi and Vincy Fon. "Judicial Precedents in Civil Law Systems: A Dynamic Analysis" George Mason Law & Economics Research Paper No. 04-15 (2004)
Available at: http://works.bepress.com/francesco_parisi/43/