JUDICIAL PRECEDENT, A LAW SOURCE

Abstract

The role awarded to judge varies from one legal system to another. In the Anglo-Saxon legal systems, there is not a self-standing legislative body, so the judge is the one who creates the law; his mission consists in solving a specific case, given the existing judicial precedents; if he cannot find an appropriate rule of law, he has to develop one and to apply it. In the continental system, creation of law is the mission of the legislature, so the creative role of jurisprudence still raises controversy. Evolving under the influence of Roman law, the continental law systems differ from the Anglo-Saxon by: the continuous receiving of Corpus iuris civilis; the tendency to abstraction, leading to the creation of a rational law; the rule of law, with the consequence of blurring the role of jurisprudence. Underlining the creative force of jurisprudence, Vladimir Hanga wrote: "The law remains in its essence abstract, but the appreciation of the jurisprudence makes it alive, as the judge, understanding the law, taking into account the interests of parties and taking inspiration from equity, ensures the ultimate purpose of the law: suum cuique tribuere”.

Keywords

• jurisprudence
• precedent
• continental law system
• creator role
• anglo-saxon law system