The case for case law: Recognising precedent in civil law systems

Abstract

This paper will outline the normative framework in support of a formal and systemic recognition of the use of precedential case law within civil law systems. It will begin by, first, delineating the historical developments the led to the modern, relative devaluation of case law in civil law systems — in particular, by looking to ancient Roman dispute resolution mechanisms and, subsequently, the specific political ideals of revolutionary France. Secondly, it will look to current usage of these practices on a de facto basis; focusing, in particular on the courts of the European Union (and, specifically, the European Court of Justice). Thirdly, it will posit that such usage is both unavoidable and appropriate in the exercise of any dispute resolution within a legislative legal order. Ultimately, it will argue that such usage is only likely to increase as civil law legal systems continue to develop and that it would be of benefit to do so on a principled, rather than ad hoc and reactionary basis.