Binding Precedent - Civil Law Systems

Civil Law Systems

Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to Stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedent established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedent by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.

The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions give a sufficient statement of rationale as to guide future courts. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent for future cases.

By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.

In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.

The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental civil law systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Regeringsrätten), have the right to set precedent which is in practice (however not formally) binding on all future application of the law. Courts of appeal, both general courts (hovrätter) and administrative courts (kammarrätter) may also issue decisions that act as guides for the application of the law, but these decisions may be overturned by higher courts.