Dr. “Law-Discoverer” and Mr. “Law-Maker”: the Strange Case of Case-Law in France.

von Sébastien Platon

The legal status of case-law is ambiguous in most legal systems. As Lord Scott of Foscote said in his opinion in National Westminster Bank v Spectrum Plus limited and others (n. 124),

The question whether judges in giving judgments make law or simply declare existing law is one that has been debated by generations of law students in universities and law schools across the globe.

It is in fact a constitutional matter, a matter of separation of powers. If the judges can “make” the law, doesn’t it make them the equivalent of the legislative power? The legal situation of case-law in France traditionally reflects this ambiguity. However, a recent trend in French law seems to imply that case-law is progressively accepted as a source of law. The latest example of this is a decision from the Tribunal des conflits on the 9th March 2015.

The Tribunal des conflits (Court of Jurisdictional Conflict) is in charge of deciding which of the two French court systems (the administrative system, headed by the Council of State, or the ordinary court system, headed by the Court of Cassation) has jurisdiction over a particular dispute when a conflict of jurisdiction arises. In its recent decision, the Court overturned a precedent concerning the jurisdiction over disputes arising from the performance of a contract between a concession-holder operating a motorway and a private person. The Court went on to decide that only contracts entered into after the decision would be subject to the new legal solution whereas those entered into before the decision would still be subject to the previous case-law. In other words, the Court limited any retroactive effect of its ruling.

In order to explain the significance of this decision, one must understand the ambiguity of the traditional status of case-law in French law (1) ...

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