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