La décision judiciaire, source de la force du droit

Vern, F. (2023) La décision judiciaire, source de la force du droit. In: Chauvet, M., Fernandes Meireless, G. and Nef, E. (eds.) La force du droit. Mare & Martin: Paris. ISBN 9782849346891

Abstract

The Legal Decision, Origin of the Effectiveness of Law—This paper argues that, even in civil law systems, the effectiveness of law stems from legal decisions made by judges in cases. While this would have seemed obvious to ancient Romans or to the English lawyer, the matter is generally obscured in French law, for instance, by the shared belief that legal texts have a performative function and therefore create law. It can be shown, however, that even in such systems, judges play an essential role in determining applicable law and its meaning, and sometimes also in ruling out, so to speak, legal dispositions that violate other norms. At a more practical level, only the judge's decision can pour content into the otherwise empty shell that are subjective rights: that one's claim can be time-barred is but one example of the myriad situations in which a perfectly valid right on the paper will be outshined during trial. A judge's intervention is also required for certain factual situations to start producing legal effects, or at the very least to \latin{a~posteriori} try the facts and confirm their consequences.

• Item Type: Book Sections
• Additional Information: Paper presented at Actes de la Journée d'Études sur La Force du Droit, Sceaux, France, 22nd November 2019.
• Keywords: French law, legal theory.
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Vern, Dr Flora
• Authors: Vern, F.
• Subjects: K Law > K Law (General)
• College/School: College of Social Sciences > School of Law
• Publisher: Mare & Martin
• ISBN: 9782849346891

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