Case Law and its Binding Effect in the System of Formal Sources of Law

John Altair Gealfow (1, 2, 3)

1 MUNI - Masaryk University [Brno]
2 ISJPS - Institut des sciences juridique et philosophique de la Sorbonne - UMR 8103
3 UP1 - Université Paris 1 Panthéon-Sorbonne

The author proposes changes to the traditional concept of formal sources of law. This concept originates in the 18 th century, but it fails in adapting to the development of the law, especially in relation to principles of legal certainty and predictability of legal decisions. The definition of formal sources of law is also vague and unclear and it brings more problems than it offers solutions and insight. To replace it, the author offers a new distinction-based on the criterion of autonomy of the sources of law. To support his arguments, the author compares the status of court decisions in common law and civil law systems, but also focuses on the difference between individual countries belonging to the civil law system. The comparative criteria are mainly focusing on nature and strength of the binding effect of the case law for the lower courts, but also on institutional aspects within the court hierarchy, e.g. if a judge can be liable in any way for ignoring a source of law. Keywords: binding effect of judicial decisions, principle of legal certainty, predictability of judicial decisions, formal sources of law, case law, autonomy of sources of law, precedential binding effect, legal state, rule of law.

Domaines: Droit

John Altair Gealfow. Case Law and its Binding Effect in the System of Formal Sources of Law. Journal of the University of Latvia. Law, 2018, 11, pp.38 - 61. ⟨10.22364/jull.11.04⟩. ⟨hal-03917264⟩