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FACULTY OF LAW, LUND UNIVERSITY HANOI LAW UNIVERSITY

JOINT DOCTORAL PROGRAM

NGUYEN VAN 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 01Supervisors : 1.Prof.Dr. Lê Minh Tam

2.Prof.Dr. Michael Bogdan

DOCTORAL DISSERTATION IN LAW

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To accomplish this doctoral dissertation, I would like to express mysincere thanks to all organizations, individuals and family members who havehelped and facilitated my research tasks for 5 years ( since 2006 to 2011).

Ï express my deepest gratitude to my two supervisor professors. Theyare Prf.Dr. Michael Bogdan (Faculty of Law, University of Lund , Sweden)and Prof.Dr. Le Minh Tam (Hanoi Law University). Professor Le Minh Tamalways encouraged me to develop scientific ideas in the dissertation.Professor Michael Bogdan was very enthusiastic to guide me to carry out myresearch for my dissertation. In the research process I learned a lot from mytwo supervisors. For Professor Michael Bogdan, I really learned a lot fromhim about how to use English in legal research, because of my doctoraldissertation was written in both English and Vietnamese. I understood that theenthusiasm and perceptive comments of Professor Michael Bogdan havehelped me mature a lot in using English for my dissertation. Professor LeMinh Tam gave me some suggestions which were very practical and versatileoptions on translating my dissertation from English into Vietnamese.

I am extremely grateful to the help of teachers, faculty, and staff ofHanoi Law University. Without their help I would encounter many difficultiesin the implementation of the research for my dissertation. I really thank to allinsightful comments of Prof.Dr. Nguyen Van Dong, Prof.Dr. Thai VinhThang, Prof. Dr. Nguyen Minh Doan, Dr. Nguyen Quoc Hoan, and Dr. ToVan Hoa. I alsp thank Dr. Nguyen Thi Van Anh, the director of theComparative Law Center, Hanoi Law University gave special chances to meto participate in teaching and scientific exchange on comparative law at

Hanoi Law University. During the course of doing researches for my

dissertation, I received help and support from the board of directors of the

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International Development Cooperation Agency (S¡ida)”. I would like to saythank you to Prof. Dr. Le Minh Tam, Prof. Dr. Le Thi Son, Prof. Vu Thi KimPhung. I am grateful for the thoughtful enthusiasm of LLM. Duong Thi Hien,MA. Cu Thi Thuy Trang, who are working at the International CooperationDepartment of Ha Noi Law University. I would also like to thank yousincerely to those colleagues and other Phd candidates of the joint doctoralprogram under the frame of the project of Strengthening Legal Education in

Viet Nam funded by Sida.

I especially thank the Sida-funded budget who sponsored for my study

and research abroad according to the doctoral training programs. To completemy doctoral dissertation, I was given chances to study and research in Facultyof Law, Lund University. Studying and participating in scientific activities atthe Faculty of Law, Lund University was lucky and very happy for my life.The help of professors, lecturers, library staffs and the members of the Faculty

of Law in Lund have contributed significantly to the completion of my

doctoral dissertation. I would like to especially thank those professors who aremember of the Faculty of Law-Lund. They are Prof.Dr. Bengt Lundell,Prof.Dr. Lars Göran Malmberg, Prof.Dr. Christina Moéll, Prof. ChristianHathén Prof.Dr. Kjell A Modéer, Prof.Dr. Trasman Per Ole, Prof.Dr. Hans

Heinrich Vogel, Prof.Dr. Michael Bogdan, Prof.Dr. Christoffer Wong. I amgrateful for the enthusiasm of the librarian Anna Wiberg and others whohelped me for searching materials used for my doctoral dissertation.

Contribution to the completion of my dissertation, I would like to thankMax Planck Institute for Comparative and International Private Law,Hamburg, the Federal Republic of Germany has created good conditions forme to find reading materials and writing my dissertation at this institute (fromJanuary to April 2008). Much of the content of this dissertation related to thetheory of precedent in the common law was written during the time of my

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to July, 2009). I would like especially to thank Professor. Stephen C. Hicks,Prof. Bernard Ortwein and Prof. Michael Avery who were extremelyenthusiastic guided and answered my questions about American law. I alsoexpress my sincere thanks to the help of Jonathan D. Messinger, AmericanLawyer and his family during my study in Boston. Lawyer Jonathan D.Messinger, who enthusiastically explained, discussing and helping me withpractical approaches applied in the case of the U.S. legal system. Perhaps itwould be difficult for me to write about practices of precedent in Americanlaw in my dissertation if I did not have the opportunity to study in Boston.

Research on practices of Vietnamese People’ Supreme Court, I wouldlike to express my sincere thanks to the enthusiastic help of judge NguyenVan Cuong, deputy director of the Institute for Judicial Science of theSupreme People's Court. It can be said to be exchanged and done researchcollaboration with TS. Nguyen Van Cuong has helped me to get practical anduseful information for my discussion about precedent in Vietnamese law and

also recommendation for Vietnam to adopt a proper doctrine of precedent.

I would like to express my deep gratitude to my parents, my wife and

my two sons, my sisters and my brothers. They all supported my research foraccomplishing my dissertation on time.

Last but not least, I would like to express my gratitude to leaders theAcademy of People's Security, my colleagues and the dean of my law facultyof the Academy of People's Security. They helped me to combine my teachingand doing research for my dissertation during the past 5 years.

This dissertation is written in both English and Vietnamese. Therefore,the author of the thesis will be hard to avoid the limitations of languageexpressing the translation thesis. Thank you for comments from readers.

Nguyễn Văn Nam.Hanoi, March 10,2011

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2.122ye aFRRE

Outline of the Research

Part I. Theory Of PrecedentChapter 2. A General Concept of Precedent

Concept of precedent

Ideology of Judicial Decision — Making

Ideology of Bound Judicial Decision-MakingIdeology Of Free Judicial Decision-Making

Ideology of Legal And Rational Judicial Decision-Making

Chapter 3. Theory Of Precedent In The Common Law System

The Traditional Concept Of PrecedentThe Positivist Theory Of Precedent

American Legal Realism

Why Is Precedent Followed By Judges

Chapter 4. Theory Of Precedent In The Civil Law SystemIntroduction

The Historical School In GermanyThe Positivist Theory Of PrecedentTheory Of Precedent In France

Part II Precedent in The Common law systems

Chapter 5 Precedent in The English Legal SystemIntroduction To The English Common Law

The Overview of the English JudiciaryIntroduction

Hierarchy of English Courts ( Diagram No 1)The English Doctrine of Precedent

The Concept of Precedent in English law

What Does Constitute A precedent In English lawThe Ratio Decidendi and Obiter

Persuasive Authority of Precedents

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VÀ |

The House of Lords

The Court Of Appeal

The High Court

Precedent and Legal principles

The Role of Precedent in Legal Education in EnglandThe Law Reports in England

Chapter 6 Precedent In The American Legal SystemIntroduction To The American Legal System

The American Judiciary

The Characteristic of The U.S. JudiciaryThe Hierarchy of The Federal Court SystemAn Overview About The State Court SystemThe American Doctrine of Precedent

American Common Law TraditionThe American Attitudes to PrecedentConcept of Precedent ( Stare decisis)

Operation of Doctrine of Precedent in The State Court SystemOperation of Precedent in New York Court System

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

Precedents in Constitutional IssuesUpholding Stare Decisis

Overruling Precedent

Rationale for Overruling Precedent

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

Precedent in Interpreting Statutes

A Role of Legal Education in the U.S.ALaw Reports In The U.S.A.

Part III Precedent in The Civil Law SystemChapter 7 Precedent in The French Legal System

Theory of Precedent in French Law

Non-binding Precedent in French LawPrecedent in Different Areas of LawAn Overview The French Court SystemIntroduction

Hierarchy of French Court SystemThe Judicial Court System

The Administrative Court System

Practice of Precedent in The French Court System

Example of Precedent of the Cour de Cassation

Example of Precedents of the Conseil d'EtatThe Role of precedent in French Legal EducationPublishing Judgment of French Courts

10911]

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oo Go oO COa te otWh —

Chapter 8 Precedent In The German Legal System

Theory of Precedent in The German Law

German Concept of Precedent

Arguments In Favour of Precedent Based Legislative LawsThe Role of Precedent in Different Branches of LawThe German Court System

Practice of Precedents in The German Court SystemPrecedent of the German Federal Constitutional Court

Formal Bindingness of Decisions of the German Federal Constitutional

Overruling Precedent of the Federal Constitutional Court

The Dissenting Opinion of The Federal Constitutional Court

Example of Precedents of The Federal Constitutional Court

Examples of Precedents of the Federal Constitutional Court in the Judicial

Review of Statutory Laws

Example of Decisions of The Federal Constitutional Court For The Filling of the Statutory laws

Gap-Practice of Precedent of the Federal Court of Justice

Authority of the German Federal Court of Justice‘s Precedents

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

Publication of Judgments and Law Reports

The Role of Precedent in the German Legal Education

Part IV

Precedent in Vietnamese legal System and

Recommendation For Vietnam

Chapter 9 Precedent in the Context of Vietnamese Legal SystemIntroduction

Theory of Precedent in Viet Nam

Precedent and Concept of law in The Vietnamese Legal System underComparative Law Perspectives

Chapter 10 Adoption of Precedent into The Vietnamese legal systemIntroduction

The differences between doctrine of 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 of Doctrines of Precedent in The Civil Law and CommonLaw System.

Reception Doctrine of Precedent into Vietnamese Legal SystemThe Concept of Legal Reception

Seeking For A Proper Doctrine of Precedent For Vietnam

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Chapter 11 The Role of Precedent for developing legal education inVietnam

Big Challenging for Using Precedent in Legal Education in Vietnam

Solutions for Using Precedent in Legal Education

Chapter 12 The Role of Vietnam’s Supreme People’s Court (SPC) inDeveloping Precedent

How To Identify Precedents Among Reported Decisions of The VietnamSPC

The persuasive force of precedents of the Vietnam’s SPC

Chapter 13 Recommendations for Adopting a Precedent-based

Approach in the Vietnamese Legal System

Diagram No 1 English Court SystemDiagram No 2 The U.S. Court SystemDiagram No 3 The German Court System

Diagram No 4 The German Court System

Diagram No 5 The Vietnamese Court SystemTable of cases

Official DocumentsMaterials on the internet

209210

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List of Abbreviations

- BAG- BGB- BverfGG

- BTA

- CIEM

- ECJ

- EU- GG- GVG- HL- ICJ- ICR

Bundesarbeitgericht (the Federal Labour Court)

Birgerliches Gesetzbuch (German Civil Code)

Bundesverfassungerichtsgesetz (Law on the Federal

Constitutional Court)

Entscheidungen des Bundesverfassungsgericht ( the Law reportwhich consists of decisions of the German Federal Constitutional

Bundesgerichtshof (the German Federal Court of Justice)

Entscheidungen des Bundesgerichthofes in Zivilsachen (the Lawreport consisting of the civil judgments of the German Federal

Court of Justice)

Entscheidungen des Bundesgerichthofes in Strafsachen (the Lawreport consisting of the criminal judgments of the German FederalCourt of Justice)

Bundeverwaltungsgericht (the German Federal Administrative

Bundesfinanzhof (the German Federal Financial Court)

Bundessozialgericht (the German Federal Social Security Court)

Bilateral Trade Agreement

Vietnam Central Institute For Economic ManagementEuropean Court of Justice

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Nghị Quyét- Trung Ương của Bộ Chính trị (Resolution of the

Politburo of the VCP)Supreme People’s CourtUnited States of America

United Kingdom

United Kingdom Supreme CourtUnited States Code

Uniform Commercial Code

United States Agency for International DevelomentVietnamese Communist Party

Weekly Law Reports

World Trade Organization

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Chapter 1 Introduction1.1. Background

In 2004, the Vietnam’s Supreme People’s Court (SPC) published two volumesof its past decisions. This was a remarkable event in the history of the Vietnamesecourt system, because it was the first time a collection of 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 within theframework of the Star Project-Vietnam. To highlight this special event, in the

introductory pages of volume 1, Dennis Zvinakis, director of USAID in Vietnam,

introduces the reasons for publishing the Court’s decisions and the benefits frompublishing judicial decisions will contribute for legal development in Vietnam. In thecontext of globalization, as a member of the World Trade Organization, Vietnam hasto comply with the principle of transparency which requires Vietnamese courts topublish their decisions. There are also some statements in the first pages of volume |which focus on the reasons for the future annual publication of the decisions of theCourt. The interesting question here is whether or not Vietnamese lawyers and judgescan refer to these published decisions in their arguments before Vietnamese courts. Itis widely accepted that there is no tradition in Vietnam of using previous courtdecisions to assist legal reasoning in subsequent cases with similar facts. This willthen 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 in particular. Dissimilar to the case in many

western countries, the current Vietnamese legal system is built within the Socialistregime in which the Vietnam Communist Party plays the leading role in the State and

society as a whole. Therefore, any transformation of law or major legal reform must

be carried out under policies of the Vietnamese Communist Party. Until 2005, thedate of Resolution 49 NQ/TW of the Vietnamese Communist Party (so-called Judicial

Reform Strategy to 2020), the role of precedent in law was not mentioned as the

policies of Vietnamese Communist Party concerning legal reform in Vietnam. TheResolution 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 forovercoming the deficiencies of the law. It is interesting to note that the word

‘precedent’ appeared for the first time in the Vietnamese Communist Party in itspolicies on legal reform in Vietnam. Together with this new orientation of theResolution 49 NQ/TW calling for acknowledging precedent in Vietnamese law, thepublication of the first two volumes of the decisions of the Supreme People’s Courthas not so far changed the attitudes of Vietnamese lawyers towards the role ofprecedent in the law. 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 judicial decisions when deciding the cases

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before them. Although Vietnamese lawyers are not prohibited from using precedentsin their arguments before the court, but they do not regularly do this. Before the

Vietnam’s SPC published its decisions, Vietnamese Jawyers were not easy to accessjudicial decisions of the Vietnamese courts. In the context of Vietnamese legalculture, there is still a lack of understanding about the concept and the function ofprecedents. The Judges’ Council of the SPC regularly issues resolutions on

interpreting general provisions or articles of legislative acts. In addition, the Chief

Justice of the Vietnam’s SPC is empowered to issue circulars to implement thewritten law. This mandatory function of the Court makes many people consider thatthe 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 of the SPC consists of legal rules which arecreated in an abstract manner that is different from a precedent created in a concretemanner as courts in the western 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 of 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 of the legal reform allowsVietnam to make its legal system better than it was before doi moi. In the course of

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 onEnterprises 2005 and so on. These laws contain many general legal principles andprovisions which need to be interpreted by judges when the latter seek to apply themto different concrete situations. In reality, Vietnamese judges have faced manyobstacles when trying to deal with the broad and vague provisions of legislative laws.This situation will partly be resolved when Vietnamese judges and lawyers know howto use such laws by combining them with relevant precedents for deciding the casesbefore them. In the process of the transformation of the Vietnamese legal system intoone which effectively serves the market economy, foreign laws and legal doctrineshave been introduced into Vietnam as parts of an overall legal reception within thecontext of globalization. Vietnam has followed some European countries and built a

codified legal system, but the problem is that the country has yet to adopt any

doctrine of precedent from any foreign legal system. Judicial decision making in

Vietnam faces an obstacle when applying many legal rules of the codes without using

precedents. Calling for the use of precedents in many areas of Jaw is a hot topic in

! Hanoi Law University, Textbook Theories of State and Law, Judicial Publisher, 2006,p.355.

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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 formally recognized as a legal source in the common law system whereits doctrine of precedent is regarded as one of its main characteristers indistinguishing from its civil law counterparts. But it would be false to conclude that incivil law systems precedent does not play any significant role. On the contrary, thetheories and practices in some European legal systems prove that precedent, to someextent, plays considerable role in the French and German legal systems among others.It is widely accepted that the Vietnamese legal system is neither a common law onenor a traditional civil law one. Therefore, it will be useful for Vietnam to adopt aproper doctrine of precedent if the doctrines of precedent as appearing in bothcommon law and civil law countries are introduced into Vietnam under comparativelaw perspectives. The effort of gradually establishing and using precedent inVietnamese legal system will be worth doing if Vietnamese lawyers and judges knowhow to learn from foreign legal systems. The experiences, in terms of precedent, inspecific legal systems will help Vietnam to find a proper approach to using precedent

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

an indispensable means for enhancing legal certainty, fairness, uniformity, andpredictability. The use of precedent for legal education will also play an importantrole for improving quality of Vietnamese legal education.

In brief, to understand this background, I have spent my time in making acomparative study of the theory and practice of precedent in some countries with a

view to the systematic introduction of the doctrines of precedent into Vietnam. Thetitle 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 will be examined within a comparative law

framework. Precedent is now recognized in both kinds of system, but reasons foraccepting precedent are supported by different theories. It would be incorrect to

conclude that there is a single theory of precedent in common law systems in contrast

to that of the civil law systems. Regarding precedent in the common law systems, thetheory acknowledging precedent in the English law could not be regarded as the same

reason for explaining the reasons for supporting the American doctrine of precedent

during the development of the U.S. legal system. The same situation could be foundin comparing the theories of precedent held by the civil law systems. Thesedifferences, 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 of precedents. In the context of the Vietnamese legalsystem, the research with the broad scope mentioned above will serve as a good way

to understand about precedent in general.

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Secondly, the research has the crucial task of finding solutions for adoptingproper elements of the doctrines of precedent in the foreign 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 account the context of the Vietnamese legal

system. Any recommendation for using and establishing precedent in Vietnam should

be addressed in an open and flexible way. Solutions need to be objectively assessedand checked.

Thirdly, the research on precedent in various countries will be valuable for

Vietnamese readers, especially for legal education within a comparative lawperspective. Legal education in Vietnam has been changing to come up with thedemands of a changing society. Vietnamese law students should approach a legalissue in a comparative perspective rather than limiting themselves to domestic lawsand Vietnamese legal materials. The doctrines compared with each other may raisesome interesting issues for readers allowing them to find better solutions forestablishing and using precedent in Vietnam.

1.3. Limitation

Research on the theory and practice of precedent in a comparative law perspectivecan be done in different ways. This research focuses on theory and practice ofprecedent in four foreign legal systems namely, the English and American legalsystems, regarded as common law systems. The remaining two legal systems are theGerman 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 thecommon notion of grouping legal systems into legal families. Due to this limitation, my

research will not explain in detail the classification of the common law and civil law

systems, in term of their approach to precedent.

Part I of the thesis will deal briefly with theories of precedent in the common lawand civil law system. These theories are only examined to a very limited extent and thefocus is only on traditional theories about the legality of precedent as a source of lawwhich has more or less impact on the practice of precedent in the United States ofAmerica, England, France and Germany. Regarding theories of precedent, it is worth

noting what Raimo Siltala writes in his book “A Theory of Precedent From Analytical

Positivism to Post-Analytical Philosophy of Law’. My research does not cover a

diversified theory of precedent as does Raimo Siltala. For example, my research doesnot investigate the concept of the judicial legal norm in terms of precedent. Regardingthe practice of precedent, my research only focuses on analyzing precedent in general,

not on precedents in specific substantive areas of law. To give a picture of the practice

of precedent, a description of the judiciary of each of 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 of precedent in the? Raimo Siltala, A Theory of Precedent From Analytical Positivism To A Post ~ Analytical

<small>Philosophy of Law, Hart Publishing, 2000.</small>

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four foreign legal systems is here limited to consider when precedent is binding or

non-binding and the attitudes of the lower courts to precedents of superior courts within the

same judicial hierarchy. Part IT will deal with the practice of precedent in the U.S. andEnglish legal systems while Part III will deal with the practice of precedent in theFrench and German legal systems.

As mentioned, the research does not intend to compare the substantive content ofprecedents in a specific area of law in any of the four mentioned legal systems.Therefore, an example of precedent may be mentioned without detailing its content, but

only a mentioned precedent may purpose to show how that precedent was treated by acompetent court in a legal system. The practice of precedent in a legal system is

examined within the research may vary from one system to another. For example, thepractice of precedent in the U.S. legal system is studied by focusing in constitutionalissues while practice of precedent in French law is mainly mentioned in the area ofFrench civil law. The research is also limited to the national rather than international

scale. Thus, the theory and practice of precedent in Germany and France are considered

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

Regarding the role of precedent in legal education, the research focuses on how

precedent is used in legal education in the four countries (the U.S.A., England,

Germany and France). This plays an important role in formulating the legal methodslater used by lawyers in those systems. Beyond this, the research hopefully providesoutside perspectives on the value of strengthening legal education in Vietnam.

Regarding recommendation for the Vietnamese legal system, the research does

not intend to provide mere suggestions or proposals on how to establish and use

precedents. The recommendations for Vietnam, in terms of precedent, are concluded by

analyzing and comparing the doctrines of precedents of the four foreign legal systemsstudied in the research. A description of the Vietnamese court system is not introduced,

because the research only focuses on the function of the Vietnam Supreme’s People

Court in developing precedents. The research studies the current manner of usingprecedent in Vietnam rather than examining the theory and practice of precedent

throughout its legal history. When dealing with precedent in the Vietnamese legal

system, the research does not limit its study to any specific area of Vietnamese law, butexamines cases and case law in different areas of 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 which arealso combined with each other as follows;

The legal dogmatic method is used in the research, because it is very difficult fora legal scholar to do legal researches without relying on previous works. The subjectof the research is very broad, so the legal dogmatic method is used to formulate the

theories and practices of precedent in the different legal systems. The theory of

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precedent is mentioned in the Part I of the thesis will be reintroduced by collectingthe outcomes of previous legal researches concerning the theories of precedent. Thecontent of Part II and III of the research are based on analyzing and interpreting legaldoctrines concerning theories and practices of precedent in the common law and civil

law systems. Legal norms of different legal systems are sometimes used to provide

the legal ground for using and applying the precedents. Case law is frequentlyreferred 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 thelegal dogmatic method for carrying out the research will assist for interpreting and

analyzing the content of 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 normallyconducted with description, but in this research the description of several systems isindispensable for providing a better understanding of the operation of precedent ineach legal system mentioned in the research. In addition, without the knowledge of aspecific court system, one may not easily be able to ascertain the practice ofprecedent within it. The description of court systems is usually restricted to studyinghow precedents of the higher courts are followed or not by lower courts in thespecific court systems. Within this research, the descriptive method is also used tointroduce the publication of precedents in those legal systems mentioned in the

Research with the title ‘The doctrine of precedent in the United States of America,

England, Germany, France, and recommendations for Vietnam’ cannot be carried outwithout using a comparative method. In general, the comparative method iscommonly used in legal studies, but when it comes to dealing with foreign law themethod has to be clearly defined before it is used. This research would be lessvaluable if the theory and practice of precedent in a legal system were merelydescribed without using any comparative elements. The comparative method is usedin the research for three purposes.

Firstly, examining the issue of precedent by using the comparative method mayprovide a better understanding of the doctrine of precedent in each individual legalsystem within the frame of the research. As mentioned above, precedent is regardedas a source of law which is created by judicial decision- making function. In someparts of this dissertation, although the detailed content of precedents is not similarthey can be used to compare practice of courts in different legal systems. Precedentsare used as examples for elucidating the practice of courts in creating, applying, or

rejecting them.

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

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comparative method are'” and there is a notion in studying with the comparativemethod that the ‘thing to be compared must be comparable’.* Regarding the subject

cf this research, it is possible to compare different aspects of the theory of precedentwith each other. Part I of the thesis is formulated by using the comparative method tostudy the theoretical aspects of the doctrine of precedent in traditional Englishcommon law compared with those in American law. In part II of the research, thepractice of the doctrine of precedent in American law is compared with itscounterpart in English law in order to reach the conclusion that the American doctrine

cf precedent is more flexible than the English one. The same comparison is applied to

part III when it comes to deal with the practice of 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 drawn for

Vietnam, because in Vietnamese legal culture there is a lack of experience in dealing

with the issue of precedent in both theoretical and practical respects. The comparative

method is used to show which aspects of foreign doctrines of precedent may besuitable for Vietnam to adopt.

However, my research still encounters many problems and this seems to be

inevitable, because the subject matter of the research is very broad. The warning

statement by Esin ORUCU? is a good lesson if research is to avoid a pitfall in dealing

with the theory and practice of precedent under comparative law perspective.

15. Materials

To carry out the research, legal materials are the most necessary things

helping the author to reach the result of his research. It is widely accepted that the

doctrine of precedent is not a new legal issue. There are numerous books, articles,theses, monographs, law journals and other publications which deal with the topic ofthe research. Regarding the subject of the theory of precedent, Raimo Siltala madegreat contribution to the theory of precedent under comparative perspective by

synthesizing many aspects of the theory of precedent in his bookế. The content of the

Part I of this research inherits many aspects from Raimo Siltala’s book. To deal with

the issue of how precedent operates in different legal systems, the research utilizes themost comprehensive introduction to practical aspects, namely the book ‘Interpreting? Esin ORUCU, Developing Comparative Law. In Comparative Law A Handbook, edited by EsinGRUCU and David Nelken, Hart Publishing, 2007, p.47.

* ib. p. 47.

? Esin ORUCU argues that ‘We must remember that a comparative lawyer faces a number of

<small>additional problems. These include the choice of systems, appreciation of cross-cultural system</small>language, terminology, translations, both participant and non-participant observer effect, access to<small>material beyond the legal, the absurdity of explanations offered, the reliability of secondary sources,</small>

the existence of historical accidents and anachronism of predictions.’ See: Esin ORUCU, Developing

Comparative Law. In Comparative Law A Handbook, edited by Esin ORUCU and David Nelken, Hart

<small>Publishing, 2007, p.47.</small>

Š Raimo Siltala, supra note2, p.38.

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Precedents A Comparative Study’’ which is edited by the co-authors D.Neil

MacCormick and Robert S.Summers. The practical aspects of precedents in four legalsystems have here to be introduced and compared in the context of the relevant courtssystems. Therefore, systematic information on the organization of the court systems

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

It is worth noting that this research is written in English. Its author (NamNguyen Van) can only use English and Vietnamese in his studies. Therefore, therehave been many challenges regarding accessing original materials concerning thetheories and practices of precedent in German and French legal system. Though thisresearch deals with the issue of precedent in German and French law, 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 with chapter |

(Introduction). The remaining text is organized into 4 parts each of which is dividedinto chapters. Part I is devoted to introducing and analyzing the theoretical aspects ofprecedent in both common law and civil law countries. Knowledge coming from the

theory of precedent will be important for approaching the practical aspects of

precedent in both the common law and the civil law system. Part II deals withprecedent in the common law system. The English doctrine of 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 differences between English and Americanlaw, in terms of the doctrine of precedent. The doctrine of stare decisis has beenadopted in the American common law to fit its social and political conditions. Theultimate goal of the research is to draw the conclusion that there is no single doctrineof precedent in the common law countries. Similarly, part II] deals with precedent inthe German and French legal systems. France has a codified legal system. After theFrench Revolution, French judges were prohibited from making law like a commonlaw judge in the course of judicial decision making. Precedent was not formallyaccepted as a binding source of law in the French legal system. However, the role ofprecedent is not entirely rejected; for example, French administrative law has beendeveloping from precedents of French administrative courts. In the area of Frenchcivil law, the provisions and principles of the French Civil Code were interpreted byFrench courts, amongst them the Cour de cassation, which helped to adapt the CivilCode to changing social and economic conditions in France. Precedents of the Courde cassation are de facto followed by the lower courts in France. Chapter 7 providesmany practical aspects of precedent in French law. The German legal system is also

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

<small>Publishing Company, 1997.</small>

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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 ofprecedent in German law was not understood in the same way as in French law.Being influenced by the theory of the German Historical School and other ideas,precedent played a very important role in some areas of law in Germany, such asGerman Constitutional law, labour law, and civil law. The practice of the GermanConstitutional 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 before 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 of examining precedents in the foreign legal

systems is to allow 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 of the research which is to show how

Vietnamese legal system lacks a doctrine of precedent and how a proper doctrine ofprecedent can be adopted in Vietnam. Studying theory and practice of precedentwithin the context in which the concept of law in Vietnam excludes precedent as a

source of 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 asculture, it is necessary to adopt a broad concept of law in Vietnam rather than hold

that law only takes the form of a legal normative rule. Also, we ask how Vietnam is

going to adopt a doctrine of precedent which will function well within the

Vietnamese legal system.

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Part !. Theory Of PrecedentChapter 2. A General Concept of Precedent

2.1 Concept of precedent

In general, a precedent is an adjudicated case or decision of a court of justicewhich provides a rule or authority for the determination of an identical or a similarcase arising subsequently. The theory on which it is possible for one decision to be anauthority for another is either that the facts are alike or that, if the facts are different,

the principle that governed the first case is applicable to the variant facts."

From the historical point of view, the earliest support for using precedent

could be found in the statement of Aristotle that like cases should be treated alike.”

This idea might be said to be at the root of the doctrine of precedent in both thecommon law and civil law traditions. However, the doctrine of precedent embodied in

the common law tradition is not the same as that followed in the civil law tradition.

The doctrine of precedent in English and American law has to be understood inconnection with the evolution of common law in England, and the United States ofAmerica. The doctrine of precedent in some civil law countries under like Germany,and France have its own separate characters in comparing with that of the commonlaw tradition of English law and American law.

The key distinction between the common law and civil law systems is thatprecedent is a primary source of law in the former but only a secondary source in thelatter. From ancient times, the civil law tradition regarded the judicial decision as a

non-binding legal source for judges deciding particular cases.'° In A.D.534 Justinian

promulgated the Corpus Juris Civilis in which he laid down that a judicial decision

could not be rendered on the ground of prior case-law, but judges had to decide cases

before them by applying the laws.'' Since the beginning of the 19" century, a

movement for codification of the civil law system appeared in some European

countries. This legal movement occurred clearly in France, and Germany. In Francethe legislators did not favour the use of precedent. For instance, Article 5 of theFrench Civil Code of 1804 forbids judges from pronouncing decisions so as to makegeneral rules or precedents for the future. This idea was to abolish the use ofdecisions made by judges as a source of law. The German Civil Code (BurgerlichesGesetzbuch-B.G.B) which came into force in 1900. This code was expected to restrictthe judicial role to that of interpretation rather than the creation and development of

the law by judicial decisions.”

<small>Bryanth A. Garner, Black’s Law Dictionary, Seventh Edition, West Group St. Paul,Minn (1999), p.</small>

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However, the modern 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 asettled line of cases has great authority for judges to refer to when they decides cases

before them.'? For instance, a decision of the German Constitution Court and the five

different Supreme Courts within the German judiciary are followed by the lower

courts.'* It is widely accepted that ideas on precedent have undergone considerable

changes over the centuries. , Even in French law, where the force of precedent is

weaker than in German law’”, decisions of the French Couneil of State are considered

important precedents in French administrative law.' The decisions of the French

Court of Cassation are de facto followed by the lower courts.'’Precedent, therefore,

plays an important role in the everyday operation of the civil court systems, becausethe written law always needs to be interpreted and appued | in a detailed manner. This

will be explored in the subsequent parts of the thesis. '*

In the common law systems, precedent is a primary source of law. For those

common law systems, in general, the precedents of the higher courts are binding on

the lower courts.'? 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.”” More than this, a precedent is a binding

source of law. English judges are normally obliged to follow precedents of Englishlaw. Briefly, the doctrine of precedent requires that the precedents of all higher courtsbind the lower courts and some courts are also bound by their own decisions. Forobvious historical reasons, American law was deeply influenced by English lawduring the colonial period. However, it would be a mistake to conclude that the

American doctrine of precedent is understood in the same way as that in English law.

For one thing, American judges approach the doctrine of precedent more flexibly than

English judges do.”! 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.”

Precedent also plays an important role in identifying the legal methods usedby the common law with that of civil law systems. According to Goodhart, the critical

'3 M.A. Glendon; M.W.Gordon; P.G.Carozza, supra notel0, p.131.

4 N.Foster, German Legal System And Law, 2"! Edition, Blackstone Press Limited 1996, p.62.

'S MLA. Glendon; supra notel0, p.132.

'6 It is generally said that French administrative law is mainly based on precedents. See: Michel Troper

<small>and Christophe Grzegorczyk, “Precedent in France”, in ‘ Interpreting Precedents A Comparative</small>Study’, Edited by MacCormick and R.S. Summers, Ashgate Publishing Company, 1997,p.113.

'” K Zweigert & H.Kötz, Introduction to Comparative law, Third Edition, Clarendon Press

<small>Oxford, 1998, p.p. 121-124.</small>

'8 Part II of the thesis will deal with precedent in the American and English legal systems while Part III

<small>of the thesis will deal with precedent in the French and German legal system.</small>

'9 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.

2! Mortimer N.S. Seller, The Doctrine Of Precedent in the United States Of America, 54 Am.J.Comp.

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

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difference between the Continental and English method of legal thinking lies in the

doctrine of the binding force of precedent (Stare đecisis).”” Linked to this, the key

legal method of the common Jaw system is the inductive method, while the civil law

system is imbued with the deductive method. For instance, judges in France, andGermany decide cases by applying the particular given general rules of the codified

codes enacted by legislation to the specific circumstances. In line with their inductivelegal 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.“ 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.”°

From a terminological point of view, the expression “case-law” is used in thecivil 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 of 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 major role in the everyday operation of the civil law

systems, because general rules in statutory laws need to be interpreted by courts.”°

The high level of codification in some European countries produced many general

legal principles and abstract legal norms in their legal systems. No system, however,

possesses a written law governing all conceivable disputes. The use of case-law as a

method of statutory interpretation becomes indispensable, even in the civil legalsystem. The controversial question then arises as to whether judges in a civil lawcountry can actually make law within the trial process. The point will be consideredwhen we analyze the operation of the judicial system of civil law jurisdictions, theFrench or German legal system, for example. At the international level, case-law also

plays an important role in the everyday operations of the European Court of Justice

(E.C.J). Unlike judges in continental Europe, the judges of the E.C.J. are not reluctantto use case-law to fill gaps in the written laws within the framework of the European

In summary, it would be a mistake to contrast the role of precedent in a civillaw system and that of a common law system by keeping the traditional view thatprecedent plays no role at all in the codified civil law system, whereas precedent is

only used by judges in the common law system. It would also be false to think that in23 M.A. Glendon;M.W.Gordon; P.G.Carozza, supra note 10, p. 259.

24 Michael Bogdan, Comparative Law, Kluwer Norstedts Juridik Tano, 1994, p.115.

25 F Allan Famsworth, An Introduction To The Legal System of The United States, Oceana Pubs, 3

<small>Edition, 1996, p.p. 47-59.</small>

6 M.A. Glendon;M.W.Gordon;P.G.Carozza, supra note 10, p.130.” Ibid., p.256.

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a civil law system the written 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 inthe common law systems, the whole of the law is derived from decisions of the courtsand the legislator has hardly any role to play. According to J.G. Sauveplanne, both thecivil 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 reasoningis the provision of the statutory law, whereas in common law systems the starting

point can be earlier decisions of the court.”®

2.2 Ideology of Judicial Decision — Making

The notion of precedent plays an important role in the jurisprudence of everyWestern legal system and a pivotal role in systems rooted in the common lawtradition. From a historical perspective, jus commune was recognized as a kind of lawin Europe prior to the movement of codification of law which started in the beginning

of the 20 century. It was said that jus commune was the common law throughout the

European continent.? When the codification movement took place in many legalsystems such as the French”? and the German legal systems,’' the system of precedent

was formally abolished. When codified codes appeared they were regarded as meansfor enhancing legal unification and for creating completeness of the law. However,

codified codes produce their disadvantages in applying them to the facts, because thegeneral rules contained in the codified codes were unclear and ambiguous. Thus, it

was very difficult to apply them to the specific cireumstances”?. To deal with this

situation judges had to interpret the statutory rules to adapt those unclear, ambiguous,

3G. Sauveplanne, Codified And Judge Made Law , The Role Of Courts And Legislators In Civil

<small>And Common Law Systems, North-Holland Publishing Company, 1982, p.95.</small>

® Ewoud Hondius , General Report, In Precedent and The Law, Bruylant Bruxelles, 2007, p.12.3° Since the beginning of the nineteenth century, the codification of law has been an important feature

<small>of the French legal system. Consequently, major codes were enacted: the Civil Code of 1084; theCommercial Code of 1807 and the Criminal Code of 1810.</small>

3! In Germany, some codified codes were enacted, such as the German Civil Code of 1900 (BGB)

<small>andthe Code of Civil Procedure of 1877 (ZPO), the Penal Code of 1871 and the Code of CriminalProcedure of 1877.</small>

2 Recently, research has shown ‘[a]ll codified systems have for long fully acknowledged the need for

<small>interpretation, for it is necessary to resolve emerging ambiguities, obscurities and indeterminacy in theprovisions of the codes.’ See: Zeno Bankowski, D.Neil MacCormick, Lech Morawski, Alfonso RuizMiguel and Rationales for Precedent, in ‘Interpreting Precedents A Comparative Study’, Edited byD.Neil MacComnick and R.S. Summers, Ashgate Publishing Company, 1997, p.484.</small>

<small>For example, section 463(2) of German Civil Code (BGB) provides that the buyer of a thing isentitled to compensation if a defect in the thing has been maliciously concealed from him. But theCode does not provide any complementary rule to explain what it means by malicious concealment. In1907 the Reichsgericht explained the meaning of section 463 (2) in a concrete case. See: Robert Alexyand Ralph Dreier, Statutory Interpretation In The Federal Republic Of Germany, in ‘InterpretingStatutes A Comparative Study’, Edited by D.Neil MacCormick and Robert S.Summers, DartmounthPublishing Company, 1991,p.79.</small>

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

Under the perspective of the philosophy of law, Jerzy Wróblewski”Ì has

classified three distinct ideologies of judicial decision-making, namely the ideologyof bound judicial decision-making; the ideology of free judicial decision-making; andthe ideology of 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 makingis a very simple doctrine of the source of law and it can be summarized briefly: theunique primary source of law is a statute in the formal sense of this term; judicial

decisions have to be based on the statutory rules.”**

The essence of the ideology of bound judicial decision-making is the notion

that the law of a legal system is conceived as a closed, consistent, and complete

system of general and abstract norms of statutory law as enacted by parliament.” If

we approach the function of the judiciary under the principle of the separation of

powers applied in a legal system, the legislature has the function of making law and it

cannot create law as the legislature does. A law-creating role for judges is therefore

not acceptable. As Montesquieu said, the judges are only the mouth which proclaimsthe already existent formulation of the law. According to this point of view, judicialdecisions by judges are not regarded as law which can be compared in any way to a

statutory law. At the time of the French Revolution, the judicial function was

conceived of as the mere application of statutes, by way of syllogisms.°° Under the

influence of this principle, Article 5 of the French Civil Code of 1804 explicitly

forbids judges from laying down general principles in the course of deciding cases. *”

This is an extreme example of the ideology of bound judicial decision-making. But in

reality, today judicial decision-making of French judges is not absolutely bound by

Article 5. For more than two hundred years, precedents of French civil law, especiallythose coming from the French Supreme Court (Cour de Cassation) are highlyrespected in interpreting the Civil Code. I agree with Raimo Siltala in concluding that

‘[tloday such extreme formalism in judicial decision-making is often taken as a

textbook example of legal fiction.’**Unlike Article 5 of the French Civil Code, Article

1 of the Swiss Civil Code which enacted a century later than the French Civil Code,Article 1 of the Swiss Civil Code expressly directs the judge, in the absence of

statutory provision or customary law, to decide in accordance with rules which he

33 Jerzy Wréblewski is a Polish legal philosopher.

?“ Wróblewski, The Judicial Application of Law, Kluwer 1992, p.p. 273-314.35 Raimo Siltala, supra note 2,p.2.

3° Michel Troper and Christophe Grzegorczyk, supra note 16, p. 103.

3” Peter de Cruz, Comparative Law in a Changing World, Cavendish Publishing, 1999, p.242.38 Raimo Siltala, supra note 2,p.4.

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would lay down, if he had himself to act as legislator and in doing so, be guided by

approved legal doctrine and case law.”

Today in most civil law systems, the ideology of bound judicial making has becomes less rigid than it was in the nineteenth century. The evidenceshows judges have limited discretionary power to make law. This power was eitherdeliberately delegated to the courts by Parliament or came into effect as a result of the

decision-interaction between the demand of adapting law to the changing social and economic

conditions and the flexible legal standards laid down by the legislature.

A response to the strict ideology of bound judicial decision-making can be

found in the theory of legal positivism”. Hans Kelsen (1881-1973) considered that

the application of a statutory law or any other legal norm might be exercised by

giving some discretion to adjudicative function of judges.*’ Supporting this point,

H.L.A Hart (1907-1992) pointed out that judges inevitably use their discretion tomake new law, on the occasion where the legal rules have ‘open texture’. He alsonoted that judicial law-making at the margin was a good thing, giving needed

flexibility to the application of legal rules. “2

2.2.2 Ideology Of Free Judicial Decision-Making

The ideology of free judicial decision-making emphasizes the role of thejudges who are not bound by legislative rules when they decide cases. One couldalmost say that the role of the legislator in the creation of valid legal norms is belittledwhen the role of making law is conferred on the judges. According to Jerzy

Wroblewski, the ideology of free judicial decision was an expression of the revolt

against legal formalism and this idea was inspired by the shortcoming of the legal

positivism of the nineteenth century.” One of the intellectual movements whichsupport the idea of free judicial decision-making is legal realism“. 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.

“° Legal positivism is based on the simple assertion that the proper description of law is a worthy

<small>objective, a task to be kept free from moral judgment. Legal positivists include Thomas Hobbes 1679); David Hume (1711-1776); Jeremy Bentham (1748- 1832) and John Austin (1790-1859). Hans</small>

<small>(1588-Kelsen (1883-1973) and H.L.A Hart. (1907-1992) represented post-modern legal positivism.</small>

*! Brian Bix, Jurisprudence Theory And Context, Third edition, London Sweet & Maxwell, 2003, p.p

*2 Ibid.,p.p.45-55.

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

“* Legal realism derived from a group of American legal theorists in the 1920s, 30s and 40s. Their

<small>influence on legal thinking, particularly in the United State, but also elsewhere, can be summarized bythe phrase “we are all realists now”. Oliver Wendell Holmes Jr (1841-1935) was the most famous legalrealist in America. The main focus of legal realism was on judicial decision — making. It consideredthat a proper understanding of judicial decision-making would show that it was fact-centred and thatjudges’ decisions were often based (consciously and unconsciously) on personal or political biases andconstructed from hunches.</small>

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

As Raimo Siltala states “[a|n increased use of general clauses in legislation

has denoted a more or less open delegation of norm creating power from thelegislature to the courts of justice and the general belief in the formal! values of legal

positivism may also be on the wane among citizens. Instead of the formal

characteristic of law, the ideology of free judicial decision-making underscores thedynamic characteristic of jurisdiction, its responsiveness to the problem of the real

world “out there”.’*°

The ideology of free judicial decision-making has been criticized on theground that if the judges are not strictly bound by the legislators’ law, they will have

unlimited discretion which will, therefore, cause danger both for the principle of the

rule of law and the separation of powers. Nonetheless, Jerzy Wróblewski is in favour

of the ideology of free judicial decision-making rather than the bound alternative.*° ]

do not agree with this point of view. Because the principle of rule of law is nowwidely 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 Wroblewski, the ideology of legal and rational judicialdecision-making is ideally situated between the bound and free ideologies of legal

adjudication. *’ 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 how 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 firstis 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. However, the question is how to define

legal rationality. According Jerzy Wróblewski, among other things, there are twopoints need to be considered in judicial decision-making. They are legality and

rationality of a judicial decision. Legality of a judicial decision shows conformity oflegal ground for deciding the case with the requirement of the law in force, whilerationality of a judicial decision concerns on the internal and external premises of

legal justification.”

It seems to me that it is hard to identify the rationality of a judicial decision

and the concept of legal rationality itself is problematic. The latter concept wasconsidered by Max Weber, who wrote that.“[S]substantive rationality of law means4 Raimo Siltala, supra note 2, p.5.

“© Raimo Siltala, supra note 2, p.5.*' Ibid, p.6.

“8 Wróblewski, The Judicial Application of Law, Kluwer,I992, 317-111, quoted in Raimo Siltala,

<small>supra note 2, p.6.</small>

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that the decision of a legal problem is influenced by norms different from thoseobtained through logical generalization of abstract interpretation of meaning. Thenorm to which substantive rationality accords predominance includes ethicalimperatives, utilitarian and other expediential rules and political maxims, all of which

diverge from the formalism.’

One could also argue that for a judicial decision to be based on legalrationality, the decision must not be influenced by any arbitrariness on the part of thedecision maker (the judge). In other words, we can measure the legal rationality of adecision by excluding what is irrational in it. A judicial decision is irrational if it is

unreasonable; if it lacks ostensible logic or if it lacks comprehensive justification.”

The issue of how to identify legal rationality leads to never-ending debates. Itwould be more practical to consider legal rationality in concrete situations. In termsof following precedent, I will elaborate the legal rationality of judicial decisions inselected legal systems in a comparative perspective in Part II and III of this thesis.

Regarding the ideology of judicial decision-making, I agree with JerzyWroblewski that no ideology of judicial decision-making is able to draw the

conceptual boundary of legality of judicial decision. Because, there are no generalaccepted criteria for defining each type of judicial decision-making which |

mentioned above.

htto://duncankennedy.net/documents/The%20Disenchantment%200f%20Loqically%20FormaI%20Leaal%20Rationality.pdf (September 20,2008)

*° 20,2008)

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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 theEnglish legal system and those legal systems influenced by English law, the mainexamples being the United States, Canada, Australia and New Zealand. Originally,the term common law derived from English law. Common law is a part of Englishlaw. As Geoffrey Samuel expresses it “[c]ommon law has a variety of 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.” In term of legal

terminology, it would be necessary to understand the meaning of ‘common law’,which, translated into Latin or French, means Jus commune or Droit communrespectively. These legal terms took their senses within a European context, as

developed within a framework where Roman law was taught in European universities

from the 12” to 19” centuries. Jus commune was used to express the inductively

derived common law arising from the influence of Roman law which constituted a

common body of law, legal commentaries, legal language, language and the approach

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

The meaning of common law in England is rather different. There, common

law is contrasted to statutory law; it represents that part of the law which is contained

in the decision of the courts, rather than on enactment by Parliament. In terms of legal

method, common law is a judge made-law: the incremental development of law arisesfrom judges deciding particular cases, with each decision being shown to be

consistent with earlier decisions of the higher courts. English common law was also atthe origin of all common law systems, so I will start with the theory of precedent inEnglish law.

Legal scholars in both common law countries and other jurisdictions pay

much attention to the theory of precedent. As Gerald J.Postema wrote, precedent is

the life blood of any legal system.”” 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 therewas noagreement on how to formulate the theory of precedent in the common law system.This is explained in part by the absence of uniformity of practice in the interpretationof statutes and the great variety of rules and doctrines which relate to the issue of

precedent. it was said that “[t]here is no actual uniform operation of the English court

concerning the operation of precedent.’**From the historical point of view, the theory

*' Geoffrey Samuel, Common law, in Elgar Encyclopedia Of Comparative Law, Edited by Jan M.

<small>Smits, Edward Elgar, 2006,p.145.</small>

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

3 Gerald J. Postema, Roots Of Our Notion Of Precedent, In ‘Precedent In Law’, Edited by Laurence

<small>Goldstein, Clarendon Press- Oxford, 1987,p.p.10-15.</small>

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

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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 Traditional Concept of Precedent

The traditional concept of precedent is to be found in the work of somefamous scholars in the field of common law jurisprudence. They include Davies andCoke in the seventeenth century and Blackstone in the eighteenth.

Their notion of precedent comes from their conception about the common lawin general. According to Davies, the common law of England is nothing else but the

common custom of the Realm in which the law is combined with common usages.*°

Coke considered that, unlike statute, common law is the product of a

disciplined process of reasoning and reflection on common experience. Coke

emphasized the wisdom of judges, excellent men who shaped the law during their

years in office. According to Coke, “[r]eason is the life of the law’.°° In the eighteenth

century, Blackstone said ‘the decisions of courts of justice are the evidence of what is

common law'.”” His main conception of the law is that is based on common

principles and customs. He noted that the judges had the wisdom to recognize whatwas the law. The wisdom of the judges was a product of their intelligence and their

experience in exercising their adjudicative duties. The famous work ‘Commentarieson the law of England’ that Blackstone left for later generations contains a

comprehensive analysis of the common law in England as based on precedents. It was

said that Blackstone’s book, for the first time, made English law readable and

intelligible to the lay mind.** Blackstone noted the existing common customs which

judges relied on to decide the cases at hand. The wisdom or the goodness of a customis a product of time and of the process of refinement that the English judges have

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

(1) Precedents are past decisions that have authority because they have been

decided and settled and have a place within a recognized body of commonexperience.

(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 insubsequent cases; they decide the new case by determining the rule of the previous3 Sir John Davies, Irish Reports (1612), Introduction , quoted by J.A.G. Pacock in The Ancient

<small>Constitution And The Feudal Law, Cambridge, 1957, p.p.3-32.</small>

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

<small>Of Precedent, In ‘Precedent In Law’, Edited by Laurence Goldstein, Clarendon Press- Oxford,1987,p.19.</small>

>? Commentaries(13TM ed.) On The Law of England, Vol I, p.p. 88-89.

° ( Downloaded on July 12, 2008)

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decisions and following 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 force on later cases. It is simply said thatsomething stands behind the decisions, justifying them, guiding them and giving them

authority as law.”

3.3 The Positivist Theory Of Precedent

Legal positivism is based on the simple assertion that the proper description of

law is a worthy 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 of law found in Coke. 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 of which are

indisputable. He said that there was nothing special about the reasoning of lawyers

and judges. It was simply natural reason, which every competent person could

exercise, applied to the subject of law.°! Hobbes also equated law with the natural

reason of 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 of reason and if individual judges were to act on his or her own

reason, there would be conflict between individuals and within the collective.Although Hobbes did not accept the prevailing notion of precedent, his theory

explains why precedent still has a role as law. His point of view was elucidated by

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 theexercise of their own ‘natural reason’ in the course of deciding the particular cases

they establish new rules of law, rules which are thereby authoritative and peremptory

in the same ways as the sovereign’s commands are’.

Another positivist scholar was Jeremy Bentham (1748-1832) “who greatly

contributed to the development of statutory law in England. On the one hand,

°° Roger Cotterrell, The Politics of Jurisprudence A Critical Introduction To Legal Philosophy, Secondedition, Lexis NexisTM UK, 1989,p.23.

Brian Bix, supra note 41,p.p.33-53.5! Gerald J.Postema, Supra note 53, p.12.52 Ibid.,p.13.

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

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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 publiclyrecognized rules. Such a frame-work would have to be one of statutory law. He didnot approve of scattered rules of common law which derive from numerousprecedents. On the other hand, Bentham argued that to some extent, precedent has the

same effect as a law. The rules of law, seen now as precedents, must be extracted

from particular decisions by a process of ‘abstraction’.TM

In the twentieth century, the position of H.L.A. Hart (1907-1992) was

regarded as the main representative of legal positivism.°° But Hart moved legal

positivism in a different direction. While he continued to insist on the importance of

the separation of law and morality, he criticized the view of the earlier form of

positivism.®° Hart introduced the concept of a rule of recognition: a set of 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 of two kinds of rules: primary rules

of obligation and secondary rules of recognition, change and adjudication. Heconsidered that the secondary rules of change confer power on certain authorities,judges among them, to issue, alter or derogate from the valid rule of obligation. The

concept of law, for Hart, includes the secondary rules of adjudication, which lay

down the procedure to be observed when primary rules of obligation are applied andenforced in the court of justice. The rules of recognition, in Hart’s theory, are rules of

law which are identified by judges as being valid obligatory rules.’ Thus, judicial

precedent becomes a kind of law.

Hart concluded that judges must inevitably use their discretion to make new

law, on occasions where legal rules have an open texture. He also noted that judicial

law-making at the margins was a good thing, giving much needed flexibility to the

application of legal rules.

Based on its conception of common law rules, positivism promotes a theorythat precedent stands for or embodies general rules (these rules being derived from orembedded in the judicial decisions of the courts). These rules are authoritative. Thepractical value of using precedent in subsequent cases is high and what is more, legalrules derived from precedent can provide legal certainty and legal predictabilityregarding matters with the same or similar facts.

3.4 American Legal Realism

Legal realism was a movement that flourished in the 1920s to the 1940s in

America.” It had a great influence on American jurisprudence in the twentieth

century which has lasted up to the present time. American legal realism ultimatelytraces itself back to the work of Oliver Wendell Holmes Jr (1841-1935) who wrote

° Gerald J.Postema, supra note 53, p.14.® Brian Bix, supra note 53, p.35.* Raimo Siltala, supra note 2,p.p.9-11.®” Ibid, p.10.

5 Brian Bix, supra note 41,p.44.© Ibid., p.177.

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most of his influential work in the earlier part of his life.” Being influenced by the

traditional theory of common law, Holmes wrote that the life of law has not beenlogic: it has been experience.

Regarding the role of precedent in law, legal realism focused on judicialdecision-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 way of the deductive method.’' Thus, legal realism called

for judicial decision-making that needs to take into account both the law and theprecedents to be found in the past. This also encouraged the teaching of law by casemethod. In this method, law students are taught different subjects of law by reading aseries of decisions, mainly of the appellate courts, and then analyzing rationalesoffered by the courts to their decisions.

Common features of the arguments of legal realists are that judges often havediscretion, that judicial! decisions are often in practice determined by factors other

than legal rules and a shift in the focus from conceptual analysis to policy-basedarguments and fact-finding. The landmark case of United States v E.C. Knight 156

U.S.1 (1895)”, the so-called “The Sugar Trust case”, helped the arguments of legal

realism to flourish when they established that the U.S. Supreme Court decided thecase not by relying on the Sherman Antitrust Act (1890) but basically on its ownreasons. 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 learn more social science to

understand how people actually behave and the way in which legal rules reflect and

affect behaviors. Merely following precedent is not enough for a judge to decide the

case before him. Benjamin Kaplan says that ‘[j]udges, in fact, follow their instincts in

deciding cases, making sham references to rules of law; generally they are themselves

7° Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence (Pt I), 24 Harvard Law

<small>Review, 1911,p.591.</small>

7! Brian Bix, supra note 41,p.180.

"2 United States v E.C. Knight 156 U.S. 1 (1895) known as The “Sugar Trust Case” was decided by the

U.S. Supreme Court and limited the Government’s power to control monopolies. The case was under<small>the Sherman Antitrust Act, enacted by Congress in 1890, as an attempt to curb concentrations ofeconomic power that significantly reduced competition between businesses. One of its main provisionsoutlaws all trade combinations or agreements that severely restrict trade between states or with foreignpowers. The facts of the case are that in 1892 the American Sugar Refining Company gained control ofthe E.C. Knight Company and several other sugar companies. At the end of this expansion, theAmerican Sugar Refining Company controlled 98 percent of the nation’s sugar refining capacity.President Grover Cleveland (in his second term 1893-1897) directed the Government to precede underthe provisions of the Sherman Antitrust Act to prevent the rise of monopolies by way of acquisition.The U.S. Supreme Court rejected the Government’s claim by ruling that manufacturing in this casewas not subject to congressional regulation of interstate commerce but to the regulations of theindividual states. See: class="text_page_counter">Trang 33</span><div class="page_container" data-page="33">

unaware of what they are doing and persist foolishly in believing that they are being

obedient to precedent.° ”

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 precedentsare followed in law. In the common law countries judges follow precedents , becausethere 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 previousdecisions of the higher ones. In the civil law system, although precedent is not

regarded as a formal source of law, the precedents of the Supreme Court in a civil law

system has at least persuasive authority for the lower courts to consider.

The first 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.” In the common law system, for

example in English legal system, the doctrine of precedent requires judges of lowercourts to follow decisions of higher appellate courts and a decision of the final

appellate courts should not deviate from its own precedents.” This requirement seems

to be impossible to carry out in an exhaustive manner, because it seems unreasonablefor a judges to follow an earlier decision when he or she believe that the decision wasmade by a mistake. It is perceived as unfair when a judge has to abide by a mistake ofprecedent rather than correct it by creating a new precedent. According to RichardWard, the most obvious disadvantage of the English law system is its inherentrigidity, which may occasionally cause hardship coupled with the vast and everincreasing bulk of reported cases from which the courts have to determine the law.When the rules of law derive from a system of precedent, basic principles tend to be

obscured.’°

The second reason for following precedent is that justice requires it. Theessence of this point is that like cases must be treated alike or else someone is beingtreated unfairly. Thus, judges must treat the parties in a case the same as the parties inthe 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 fix the

features which will allow later judges to determine if the relevant similarities areappearing in later cases. That is why the solution to a particular case is a solution to

similar cases in the future.

® Benjamin Kaplan, Do Intermediate Appellate Courts Have A Lawmaking Function, Massachusetts

<small>Law Review, 1985, p.10.</small>

4 Theodore M.Benditt, the Rule of Precedent, in ‘Precedent In Law’, Edited by Laurence Goldstein,

<small>Clarendon Press, Oxford, 1987.p.90.</small>

"5 Ibid,.p.90.

”® Richard Ward, Walker and Walker’s English Legal System, Butterworths, Eight Edition, 1998, p.63.

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The third reason for following precedent is associated with the idea ofenhancing 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 tocope with changes of 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 socialchange and there should be a balance between the need for stability and uniformity

and the need for flexibility. The law cannot be static and, in many circumstances

precedents must be overruled under the attack of sufficient reasons for legal

development. This point of view will be elucidated in Parts II and III of this thesis.

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Chapter 4. The Theory Of Precedent In The Civil Law System

4.1 Introduction

Traditionally, the civil law system has been seen as a codified system. This

means that only codes and legislation, but not precedents, count as formal sources of

law. Likewise, there is no doctrine of stare decisis like the one rooted in the commonlaw systems. As noted by D.Neil MacCormick and Robert S.Summers the persistentdenial by civil lawyers that judicial decision is a source of law in their system hasproduced a vita] distinction between the doctrines of precedent in common law andcivil law countries: the lower courts in the latter are not formally bound by higher

courts’ precedents.” This does not mean that there has never been a theory of

precedent in civil law systems, containing a rationale for the limited role of precedent.Indeed, in some legal systems, namely the German and the French, theories aboutprecedent in law do exist. I will now briefly introduce some theories on precedentwhich have had influence on jurisprudence in German and France.

4.2 The Historical School In Germany

The historical school was a movement that had considerable influence onGerman legal development during the nineteenth and the twentieth centuries. Theposition of precedent was discussed by German legal scholars within this movement.Among them, Friedrich Car] von Savigny (1779-1861) was indeed one of the most

respected legal scholars in the historical law school.” His position on sources of

law, especially the role of judicial decisions, had great influence on German

jurisprudence. Even today, Savigny’s views on the role of precedent are of both

theoretical and practical value. In his famous book ‘On the Vocation of Our Time

for Legislation and Jurisprudence’, he provided the framework within which the

problem of precedent and judge-made law was discussed.” The core of his view of

precedent is that the entire law represents the common conviction of a nation, or in

case of international law, of the community of nations. He regarded not only thelegislator but also the jurist as representatives of the people when making what hecalled ‘scholarly law’ or ‘science of law’. The term ‘scholarly law’, according toSavigny, is synonymous with ‘practical law’, the law made by judges. In Savigny’s

time, the movement of codification of law was dominant in France, and Germany.

This gave rise to problems for judges who found difficulties in applying the generalprinciples in codes or statutory law to various concrete situations. Thus, it became

TM Hans W Baade, Stare Decisis In Civil-law Countries: The Last Bastion, in ‘The Themes In

<small>Comparative Law In Honour Of Bernard Rudden, Edited by Peter Birks and Arianna Pretto, OxfordUniversity Press, 2000, p.3.</small>

Robert Alexy, Ralf Dreier, Precedent In The Federal Republic Of Germany, in ‘Interpreting

<small>Precedents A Comparative Study’, Edited by MacCormick and R.S. Summers, Ashgate PublishingCompany, 1997, p.p. 40-41.</small>

"Ibid. p.41.

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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: first by finding principles of the law and deducingconsequence from them, thus producing new norms by elaborating the latent contentof positive law and second, by establishing leading scholarly opinions and

established usages of the court.’®°

Overall, Savigny and his followers put forward a theory of precedent thatsupported judge made-law in the context of the German legal system at that time.This had a significant influence on jurisprudence in Germany. Bernhard Windscheid(1817-1892), a representative of the late phase of the Historical school, introduced the

theory of gap-filling in which he analyzed the practicality of judicial decision-making

and the possible authority and practical force of a single precedent, varying with the

quality of its reasoning. *'

4.3 The Positivist Theory of Precedent

The positivist theory of precedent was elaborated by several leadingpositivists, chief among them Laband, Bergbohm and Kelsen, in the second half ofthe nineteenth and throughout the twentieth century. Hans Kelsen (1881-1973), an

Austrian legal theorist, is noted for his so-called ‘Pure Theory of Law’.TM Kelsen’s

theory is well known not only in Europe but also in America. He spent the lastdecades of his long, productive life in the United States of America, having escapedEurope at the time of Hitler’s rise to power.

Regarding the role of precedent, Kelsen basically focuses on considering

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

in two aspects that go together to create the pure theory of law: the static aspect oflaw - what law is at any given moment - and the dynamic aspect of law - how the

legal system functions over time.** Kelsen and his fellows argued in favor of

made law by claiming that, when the legislature enacts statutory law, this is only anattempt, to create pure law which always needs to be realized and completed by

*° [bid.,p.41.

8 Ibid.,p.42.

® Brian Bix, supra note 41, p.55.

3 Dhananjai Shivakumar; The Pure Theory As Ideal Type: Defending Kelsen On The Basis Of

Weberian Methodology, Yale Law Journal, Vol.105, 1996.<small>Ibid.,</small>

85 Peter Wesley-Smith, Theory Of Adjudication And The Status Of Stare Decisis, in ‘Precedent In

<small>Law’, Edited by Laurence Goldstein, Clarendon Press, Oxford, 1987.p.77.</small>

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4.4 The Theory of Precedent In France

French law is codified, as is the case in most civil law systems. The great

process of legal codification took place throughout the nineteenth century, beginningwith the famous French Civil Code of 1804. It was the success of the codification ofFrench Civil law that encouraged the view that most areas of private law and public

were governed by codified codes. One of the advantages of legal codification was to

be systematic, expressed in clear and technical terminology. The codified 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 asthe primary source of law and serve as essential day to day working instruments for

French lawyers.®° The French legal system clearly therefore needs a proper theory of

precedent if precedent is to play any role. Such a theory would also help in thecomparative understanding of the differing role of precedent in common law and civil

law countries.

Eva Steiner has synthesized the views surrounding the theory of precedent in

France in her book so called ‘French Legal Method’. Steiner discussed the reasons foracknowledging precedent (jurisprudence) when precedents were to be regarded as a

source of law and she associated precedent with the normative power of judicialdecision making. She explained that “[i]nvestigation of the issue of whether

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

posed by case law in France. What is the nature of the relationship between

judge-made law and legislation in a system such as that of France, which over-emphasizes

enacted law? And how in such a system can judicial law making be legitimated?’®”

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 weight on precedents; the relation between precedent (jurisprudence)and legislative law; and the legitimacy of precedent.

First of all, the starting point is that the judge is not allowed to make law andthus 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 law. It was saidthat the idea of Montesquieu had great influence on the formal theory of French law

with his notion that ‘every judge is regarded as the mouth that pronounces the words

of law’. Being influenced by this idea, Article 5 of French Civil Code 1804 providesthat judges are forbidden from making general or regulatory decisions in respect ofthe cases coming before them. Further, there is no rule of stare decisis in French law.For all that, in some areas of law, such as French administrative law developed with

frequent use of precedents of French administrative courts. The practice of precedent

of French administrative courts will be given in Part III of this thesis.

Secondly, Steiner considers that there are a certain number of factors whichcontribute to ascribing a certain degree of normative force to precedent: the rank in

8 Eva Steiner, French Legal Method, Oxford University Press, 2002,p.29.° Ibid.,p.76.

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the hierarchy of the court which gives the decision to be followed; the extent to whichit departs from previous decisions; whether judges have to respect a principle of

general application relating to a consistent line of earlier decisions.*®

Thirdly, the predominant view of the relationship between precedent andlegislative law is that the latter prevails over the former. Steiner argues that thereshould be a more dialectic approach to this issue, the two type’s sources of Jaw

complementing one another.”

Fourthly, regarding the legitimacy of judicial law making, Steiner

considered two views on whether judicial law making should be accepted or not. Shefavors validating judge-made law where there is a gap in the law 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 governed by the

law. ”°

In France, other authors divide precedents into two types: precedent of

solution and precedents of interpretation.’' Clearly, the latter is more likely to be

accepted if it ties in with the demand to unify the law.

88 Jb¡4., p.p.82-87.35 Tbid.,, p.p.91-96.° Tbid.,p.p.96-98.

*! Michel Troper and Christophe Gregorczyk, supra note 16, p.126.

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Part Il

Precedent In The Common Law System

Chapter 5 Precedent in the English Legal System

5.1. Introduction to The English Common Law

The history of the English legal system underwent a significant change afterthe Norman conquest, because before 1066, there was no unitary, national legalsystem at all in England. It was said that ‘[t]he common law had been largelyestablished by the accession to throne of Edward I in 1272. The King’s court had its

role in creating common law throughout the country.’ This kind of law gradually

superseded customary laws which were also applied in the various regions at thattime. The term common law was used to distinguish the law that was created viadecisions of the Royal Courts in London and which was applied throughout theKingdom (thus a common approach to law) from ecclesiastical (Church) law (which

2 Gary Slapper, David Kelley, Q&A Series The English Legal System, The 6" Edition, Routledge

<small>Cavendish, 2006,p.5.</small>

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remained an important source of law until the nineteenth century) and customary law.

Eventually, common law took over from other sources of law, especially the reportingof decisions became more organised and it was thus easy to see how judges were

applying the law.”

It is said that English common law began with the adjudicative functions ofthe royal judges. The royal court sent its judges all over the country to hear cases. Theroyal court had a permanent seat in Westminster and royal judges resided there part of

the time and went on circuit the rest of the time. The royal judges decided cases inaccordance with the local custom from where the cases emanated. When meeting in

Westminster, judges exchanged views on the customary laws they applied. Thispractice gradually became necessary to allow all royal judges to increase their

knowledge of law. By doing this, they finished with a uniform law that was appliedall over the realm, limiting the scope of the various customary laws. This uniform lawwas based on decisions in individual cases. So the law of the royal judges was based

on common law which was synthesized from various decisions of the royal court. TheRoyal court in Westminster became the center of law making. Common law is judge

made law and has its root in the beginning of the 12" century in England.

Common law has been developing in the English legal system for nearly nine

centuries. Today, common law remains and covers most areas of English law, thoughlegislative laws exist in many areas of English law. In principle, statute law prevails

over common law based on precedent. However, there are still some areas of law,

where common law rules predominate, namely, the areas of contract law, tort law andcriminal law. For example, in English criminal law, the definition of the crime of

murder is still based on precedents in the common law.

It is necessary to keep in mind that English law also consisted of the law ofequity which was created to supplement deficiencies in the common law. Theestablishment of common law courts in the early medieval period did not representthe full extent of the Crown’s jurisdiction. The common law courts requiredcomplicated procedures for each kind of litigation by way the writ system. To dealwith the problems encountered by litigants at common law, the King established acouncil to hear cases to which litigants who not been able to bring their petitions

before the common law courts: this became the Court of Chancery. By the 14"

century, petitions sent to the King seeking justice were heard by the Chancellor, themost senior officer of the Council. The Chancellor worked as the adviser for the King

in deciding cases on the basis of justice. By the late 14" century, more and more

petitions were sent directly to the Chancellor, so the King ordered the establishmentof the Court of Chancery which operated differently from the common law courts.Chancellor heard cases without using the complicated writ system the ordinary

common law courts relied on. In the 15” century, the Court of Chancery was called

the court of conscience. The Chancellor created a doctrine of equity to correct defects3 Alisdair A. Gillespie, The English Legal System, Oxford University Press, 2007,p.12.

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