To begin, we can notice two concepts concerning the value granted to the decisions delivered by the jurisdictions of a state: indeed, states which use Common law (like the Great Britain or the United States of America), the concept of case law is preferred whereas in states influenced by Roman civil law, this concept is rejected since in these states like France, the concept of jurisprudence prevails.
On the one hand, we will present these two concepts and on the other hand, we will show the differences between them so as to highlight their advantages and drawbacks.
[...] In France, this term has a meaning a little bit different, that is why it is important to join it with the rule of the prohibition of the judiciary decisions which obliges the judges for the future decisions. This rule is enounced in the article 5 of the Civil French code. As matter of fact, the system of case law is totally prohibited in the legal French system: we can explain this position because French jurists are influenced by Roman law. Even if the jurisprudence is a source of law, it is not regarded as the most important: we can notice how the legal French system is based on the legislation. [...]
[...] The modifications are possible but a lot of time is necessary to do them and the decision must be return by the highest jurisdiction. In the French system, the concept of jurisprudence (and above all, the possibility to adopt another solution in a similar lawsuit) permits to change the legal positions of the judges about the legal topics. Nonetheless, consequently the citizen are less protect by the legal safety and they can find lost between all decisions which are sometimes opposed. [...]
[...] The case law can be presented as a system which protects the legal safety of citizens. In other terms, the enforcement of the law remains stable. The legal solutions can be identified easily by the jurists and also the rest of the population. Moreover, we can think that the lower courts can take their decisions more quickly and with more facility on account of they must respect the interpretation adopted by the highest court. However, this system has an important drawback since the case law can suffer from a legal rigidity. [...]
[...] Moreover, we can forget to underline an aspect of this concept called in French revirement de jurisprudence namely the judges (principally in the higher courts) can modify their old decisions or interpretations of law to adopt a new position which is considered to be better by them. II. We can show briefly the advantages and drawbacks between these two concepts. We can point out two ideas: on the one hand, the question about the legal safety and on the other hand the problem of legal rigidity. [...]
[...] The presentation of the concepts of case law and jurisprudence The English case law We can't present this concept without explain the rule of stare decisis Latin legal term and more precisely the rule stare decisis et non quieta movere Sometimes, instead of using the expression of case law, it is possible to refer to others expressions like precedential law or decisional law and more generally, we can consider the terms Common law to point out case law. In spite of all different expressions, case law and the rule stare decisis are really connected. This rule lays down one principle: in some words, the Courts must take their decisions in accordance with the former decisions pronounced on the same subject. [...]
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