Jurisprudence and the role of the lawyer
After talking about the law in its broadest sense, it was time to get back to the heart of the matter and to highlight the pride of our profession: our contribution to jurisprudence.
Indeed, it is easy to notice by reading a law or by opening a code (red, blue or orange, the choice …) that the understanding of an article of law is not more obvious .
Example: article 2279 of the Civil Code: in fact of furniture, the possession is worth title : succinct and lapidary as affirmation and somewhat obscure (I will return there besides in a next article in a short time)
Another example: article 514 of the Civil Code: property is immovable, or by its nature, or by its destination, or by the object to which it applies
Lawyers contribute to the creation or interpretation of the rules of law by proposing solutions that, if they are adopted by the courts, form the case law.
Jurisprudence is the work of the courts. This is the usual solution to a particular point of law. To be able to speak of jurisprudence, three conditions must be met:
- the hierarchical position of the court that has adopted the solution: the case-law emanates most of the time from the Court of Cassation which, through the mechanism of the cassation and referrals, imposes its vision to the lower courts.
- the wording of the decision that adopted the solution: indeed, one distinguishes the judgments of the case (which remain very factual) and of principle (which are written in very general terms as to the principle applicable to the resolution of the dispute). It is obviously the decisions of principle which constitute the essence of the case law on a given point.
- the repetition of the solution: there is a juriprudence on a given question when a certain number of decisions have ruled in the same direction on this question, sometimes over several decades, or even more than a century.\
The case law fulfills two roles:
- she interprets the law: it is often imprecise or obscure.
- it fills the gaps of the law: sometimes even, it brings no solution to a given problem.
However, Article 4 of the Civil Code prohibits judges from denying justice: "the judge who refuses to judge, under the pretext of silence, the obscurity or insufficiency of the law may be prosecuted for denial of justice" . A judge hearing a case must therefore decide the dispute and make a decision. For this, he can refer to the general principles of law, the spirit of the law, equity, logic …
Case law is a source of law to be taken cautiously, because of its two major "flaws":
- it has no binding character: a jurisdiction is never bound by the solutions it or other even higher jurisdictions have adopted in the past. Turnovers of jurisprudence are always possible even on given points decided, a long time ago.
- it is not general in nature: judicial decisions have only relative authority. They only apply to the parties to the lawsuit and not to third parties. Jurisprudence is not the repetition of a rule applicable to all but a sum of individual decisions.
These two "flaws" are perfectly illustrated by a decision of the Court of Cassation of 7 January 2003 (n ° 00-46.476) which recalls that "the legal security, invoked on the basis of the right to a fair trial provided by the article 6 of the European Convention for the Protection of Human Rights, can not devote an acquired right to immutable jurisprudence, the evolution of the case law pertaining to the office of the judge in the application of the law. "
These two "defects" are also illustrated by Article 5 of the Civil Code, which states that "judges are forbidden to rule by general and statutory provision on the cases submitted to them." This is the prohibition of the so-called rules. It is strictly forbidden for a court to make a decision by expressly referring to a previous judicial decision.