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Judicial Precedents in Civil Law Systems: A Dynamic Analysis


Vincy Fon


George Washington University - Department of Economics

Francesco Parisi


University of Minnesota - Law School; University of Bologna


International Review of Law and Economics, Forthcoming
George Mason Law & Economics Research Paper No. 04-15
Minnesota Legal Studies Research Paper No. 07-19

Abstract:     
The effect of Civil law doctrines of precedent on the process of formation and evolution of case law is examined. Unlike the Common law systems, Civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, no single decision binds a court and no relevance is given to split jurisprudence. Once uniform case law develops, courts treat precedents as a source of "soft" law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although Civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation, corrosion and stability of legal rules. The effect of different doctrines of precedent on the patterns of evolution of the legal system is studied.

Number of Pages in PDF File: 25

Keywords: Judicial Precedent, Stare Decisis, Jurisprudence Constante, Legal Evolution

JEL Classification: K0, K40, K13, K41

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Date posted: April 22, 2004  

Suggested Citation

Fon, Vincy and Parisi, Francesco, Judicial Precedents in Civil Law Systems: A Dynamic Analysis. International Review of Law and Economics, Forthcoming; George Mason Law & Economics Research Paper No. 04-15; Minnesota Legal Studies Research Paper No. 07-19. Available at SSRN: http://ssrn.com/abstract=534504 or http://dx.doi.org/10.2139/ssrn.534504

Contact Information

Vincy Fon (Contact Author)
George Washington University - Department of Economics ( email )
2115 G Street, N.W.
Monroe Hall, #366
Washington, DC 20052
United States
202-994-7580 (Phone)
202-994-6147 (Fax)
Francesco Parisi
University of Minnesota - Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
University of Bologna ( email )
Piazza Scaravilli 1
40126 Bologna, fc 47100
Italy
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