Judicial Precedents

Presents a new analysis of judicial precedents, and in particular the growing desire in civil law jurisdictions to expand the influence of judicial precedents to ordinary courts.

This book considers what kind of binding force judicial decisions (should) hold in modern societies.

It focuses on the two most prominent legal traditions, common law and civil law. It explores the developing trend in civil law countries to expand the influence of judicial precedents, discusses the fundamental issues which arise from this trend, and looks at recent developments in common law countries.

Through this prism, the book looks at the implications of the doctrine of judicial precedents and how it is construed in jurisdictions that recognise it. It investigates the impact of newly recognised legislative or quasi-legislative powers vested in high courts on the doctrine of separation of powers. It considers whether courts in common law and civil law systems share a uniform understanding of precedents.

The book goes on to consider whether these developments are beneficial when it comes to addressing existing challenges or whether they lead to a host of new problems, potentially exacerbating the crisis of judicial legitimacy.

In relation to the hierarchical nature of civil law justice systems, it asks whether binding rulings from higher courts pose a potential threat to substantive judicial independence, limiting the open and pluralistic dialogue between lower and higher courts. It then goes on to reflect whether binding opinions from the highest judicial instances encroach upon the prerogatives of legislative bodies, resulting in the creation of suboptimal laws.