Judicial precedent, a law source

Author:Elena Anghel
Position:Lecturer, PhD, Faculty of Law, 'Nicolae Titulescu' University of Bucharest (e-mail: elena_comsa@yahoo.com).
Pages:68-76
LESIJ NO. XXIV, VOL. 2/2017
JUDICIAL PRECEDENT, A LAW SOURCE
Elena ANGHEL
Abstract
The role awarded to judge varies from one leg al system to a nother. In the Anglo -Saxon legal
systems, there is not a self-standing legislative body, so the judge is the one who creates the law; his
mission consists in solving a sp ecific case, given the existing judicial precedents; if he cannot find a n
appropriate rule of law, he has to develop one and to apply it.
In the continental system, creation of law is the mission of the legislature, so the creative role of
jurisprudence still raises controversy. Evolving under the influence of Roman law, the continental law
systems differ from the Anglo-Saxon by: the continuous receiving of Corpus iuris civilis; the tendency
to abstraction, leading to the creation of a rational law; the rule of law, with the consequence of
blurring the role of jurisprudence.
Underlining the creative force of jurisprudence, Vladimir Hanga wrote: "The law remains in its
essence abstract, but the appreciation of the jurisprudence makes it alive, as the judge, understanding
the law, taking into account the interests of parties and taking inspiration from equity, ensures the
ultimate purpose of the law: suum cuique tribuere”

.
Keywords: jurisprudence, precedent, continental law system, creator role, anglo -saxon law
system
Introduction
In Anglo-Saxon law, the task of
creating the law rests mainly with the judge.
It was considered that „a la w can rarely
provide all cases in question; common law,
that works itsel f pure b y rule s drawn from
the fountain of justice, is for this reason
superior to an Act of Parliament”
1
. The
resolutions pronounced by the judge become
Lecturer, PhD, Faculty of Law, "Nicolae Titulescu" University of Bucharest (e-mail:
elena_comsa@yahoo.com).
 Vladimir Hanga, Dreptul şi tehnica juridică, Lumina Lex Publishing House, Bucharest, 2000, p. 80
1
Lord Mansfield, cited by Philippe Malaurie, Antologia gândirii juridice, Humanitas Publishing House,
Bucharest, 1996, p. 136.
2
We believe that this matter is well represented by the judgments pronounced by the European Union Court of
Justice. In this respect, see Roxana-Mariana Popescu, Features of the unwritten sources of European Union law,
Lex et Scientia, International Journal, no.2/2013, p. 100-108. As example of the application of such „principles”,
see Roxana-Mariana Popescu, Influenţa jurisprudenţei Curţii de Justiţie de la Luxemburg asupra dreptului Uniunii
Europene case study: the concept of „charge having equivalent effect to customs duties, Revista de Drept Public,
no.4/2013, Universul Juridic Publishing House, Bucharest, p. 73-81.
mandatory in the future for all similar cases
faced by the lower courts, by forming the so-
called „case law”. The Anglo-Saxon
precedent is expressed by maxim „stare
decisis et non quieta movere”, namely „to
stand by decisions and not to disturb the
undisturbed”.
Judicial precedent does not designate
the judgment in its entirety, but the principle,
the argument based on which the case was
settled
2
. „Co mmon la w does not consist in
the cases in question, but in the general

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