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"Study on judicial precedent in France" Thesis defended by Tap Florent under the joint supervision of Ms Mastor Wanda IRDEIC et M. Xavier MAGNON
on the December 4, 2019
14 h Thesis room

"Study on judicial precedent in France" Thesis defended by Florent Tap under the joint supervision of Ms Mastor Wanda IRDEIC et M. Xavier MAGNON

Abstract :
Numerous French doctrinal studies have, increasingly since the twentieth century, used the concept of precedent to describe the creation of general norms by judges. At first glance, this concept is spontaneously associated with common law systems, in which judicial precedents are binding, under the rule of stare decisis. This change in terminology is not incidental but is the indicator of a paradigm shift in the normative power of judges in France. The purpose of this thesis is, in this perspective, to demonstrate that, while it is possible to use the term of “precedent” in France, it is not the result of an import of common law precedent, nor the result of a synthesis of common law and civil law traditions. The construction of the French legal system since the Revolution has given rise to a certain understanding both of precedent and of its authority. The precedent in France has been developed through a “légicentriste” legal culture (i.e. focused on the law enacted by the Parliament), and has been systematically approached through the conceptual canons of perception of the law. Accordingly, the precedent in France was first conceived as the formulation of a general standard by a sovereign court, like the enactment of a statutory law by Parliament. However, the reasoning of courts in France tends to become more substantial and the solution adopted is thus more justified. From a primitive conception of the precedent, similar to the law, we gradually move on to an autonomous conception of the precedent, conceived as the justification for the chosen solution, which serves as a foundation for similar cases in the future. Talking about jurisdictional precedent in France then amounts to taking note of these changes which, although still relatively punctual and timid, nevertheless reflect a certain dynamic of evolution of the creative power of judges in France.

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Additional information

Jury :
    Mme Mastor Wanda Toulouse 1 Capitole University Phd Supervisor
    M. Xavier MAGNON Aix-Marseille University Phd Supervisor
    M. Grégoire BIGOT Nantes University Reporter
    M. Fabrice MELLERAY SciencePo,   Reporter
    Mme Pascale DEUMIER Lyon III Jean Moulin University Examiner
    M. Mathieu CARPENTIER Toulouse 1 Capitole University Examiner

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