Jurisprudence

see also: Etymology of Jurisprudence

The jurisprudence indicates the whole of the decisions returned by the national High jurisdictions (Court of appeal, Council of State), by the Community and European jurisdictions (European Cour of the human rights, Court of justice of the European Communities…) but also by the course of call and the courts.

In the countries of Common law , jurisprudence ( in [[box law]] , law resulting from the lawsuits, judgments) plays a particularly important part: the stops of the courses of call bind the lower courts judging other businesses, even the same courses which returned them (Règle of the precedent, also said in rule off stare decisis ).

On the other hand, the romano-Germanic countries of tradition feel reluctant with the existence of a right created by the courts and not by the legislator. Thus, the Civil code French prohibits it in its stops of payment: the decision of a Juge cannot in the future regulate the fate of a point of law, it applies only to the judged business. Consequently, the solution which will be adopted by the Court of appeal in a business will not force the course of call and the courts to be ruled in an identical way in similar transactions.

It remains that, in spite of this prohibition, the stops of the Court of appeal, and particularly those which are the subject of a publication to the Bulletin of the Stops and diffused, mark a tendency which is generally followed by the basic jurisdictions to avoid the multiplication of the recourse and in particular appeals.

Thus, jurisprudence can it be also defined like the practice to judge courts , which, although deprived of any normative capacity, does not constitute any less, in practice, another source of the right following the example Doctrine for example.

In fact, when this practice to judge is established of long time, can one speak about “constant jurisprudence”, following the example the quieta not movere (literally: not to disturb quietude; not to make right a “jurisprudential wind vane”) of the Anglo-American rights.

The practice does not exclude however a reversal from jurisprudence which is defined as a turning in the interpretation of a point of right mainly by the supreme jurisdictions which are the Court of appeal and the Council of State but whose location is difficult to envisage and to identify…

The reversal can also come from a new current of interpretation of the courts dealing with the substance of a case which the higher jurisdictions devote when they are seized. The judge can apply a reversal of jurisprudence retroactively.

Publication of jurisprudence in the countries of civil law

The Jurisprudence always indicates a selection of decisions because it seems unimaginable to publish the whole of the court orders. Moreover, one great number of stops and judgments are not practically of any interest. Many decisions treating in fact of the same legal problems.

The decisions of certain jurisdictions are however published systematically. It is generally the case of the decisions of the highest national and international institutions. This practice is often related to the application of the legal hierarchy. When the supreme judge delivers his opinion, it has much more value than a decision of first authority.

At the era of the numerical whole, the decisions are however not with the provisions of the specialists immediately and one generally needs a certain time, which can be compensated by the provision of the texts per electronic way (http://www.cass.be, Eur-Lex or Juricaf, for example).

In other words, in general, the census and the publication of judgments or stops are mainly left at the discretion of the legal magazine publishers. Those are held informed of the interesting decisions by a network of specialized collaborators (magistrates, lawyers, clerks). They operate a sorting in the texts according to their fields of interest of course, but also of their importance: either that these decisions tackle a new problem, or which they specify a solution already adopted before, or that they operate a reversal of jurisprudence.

There does not exist fixed time between the returned decision and its publication: it can be announced in a format summarized and “gross” very quickly in such review, or several years later in its integral version accompanied by the comment of a lawyer in such other…

See too

Box law
Rule of the precedent
Stop of payment
Wikipédia like legal reference

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