Statutory interpretation and binding precedents in the Civil Law tradition

Abstract

Vertically binding precedents are often rejected in the civil law tradition by reference to three interrelated arguments: (1) judges do not create the law, they merely apply it; (2) judges are bound by statutory law, not by the decisions of other judges; and (3) statutes, not the judicial decisions that interpret and apply them, are sources of law. This chapter addresses the three arguments and argues that precedents can have binding force even in countries where their very existence is highly contested. First, it is argued that judges of higher courts engage in important creative activity when they interpret the law, so that we can speak of genuine precedents governing the interpretation of the law, which add something new to the law. Secondly, it is shown that the binding force of these precedents in civil law countries can be quite robust, especially when compared to systems where their bindingness is generally accepted. The final section discusses the extent to which precedents that interpret the law can be considered sources of law.