Centre d'Histoire Judiciaire
UMR 8025 CNRS - Université de Lille
Faculté des Sciences Juridiques, Politiques et Sociales 1, Place Déliot
59000 - Lille - France
Tél. : +33 (0)3 20 90 74 43
Fax : +33 (0)3 20 90 74 43

18/11/2010 11:00 11:00 Il y a : 11 année(s)
Catégorie(s) : Autres éditeurs

Ratio decidendi - Guiding principles of judicial decisions. Vol. 2: foreign law

Dir. S. Dauchy, W. H. Bryson, M. Mirow Comparative Studies in Continental and Anglo-American Legal History, Bd. 25/2 Berlin, 2010 ISBN : 978-3-428-13433-5 Prix : 62€ TTC

Dir. S. Dauchy, W. H. Bryson et M. Mirow
Comparative Studies in Continental and Anglo-American Legal History, Bd. 25/2
Berlin, 2010
Duncker & Humblot
ISBN : 978-3-428-13433-5
Prix : 62€ TTC

This collection of essays is concerned with the subject of ratio decidendi, which is a technical legal term of art in Anglo-American jurisprudence. This legal concept is opposed to the idea of obiter dictum. Ratio decidendi is the reason of the judge in coming to a judicial decision in a lawsuit presented to the court by the litigants for an official decision. Obiter dictum is whatever else a judge might say in passing. In Anglo-American legal cultures, the ratio decidendi of the courts accumulated over time is the law. If the community does not like what their courts have stated the law to be, then the law can be changed by their legislature. These essays consider the concept of ratio decidendi in different nations of western Europe and their former colonies at different periods of early-modern history. The concept of ratio decidendi operated very differently in different places at different times as is demonstrated by the first part of this title, which was published in 2006.

This group of essays focuses on one narrow aspect of ratio decidendi, the use by the courts of foreign law as the basis of their decisions when appropriate to the issues to be decided in a particular case brought to them by the litigants. The term foreign law is a technical legal term of art of Anglo-American jurisprudence. It refers to law that is not part of the law binding upon the court ; in other words law outside the court's system of jurisprudence. Thus, one must consider what is the local, domestic, municipal law in order to discern what is foreign to, or outside of, it. This distinction and definition varies greatly from place to place and from time to time, as these essays demonstrate.

These essays are not concerned with the concept of choice of law, also called conflict of laws, which is a matter of private international law. This is a matter of a court's applying foreign law, rather than local law, to the particular parties in a particular lawsuit because it applies specifically to them. But these essays here are concerned with the incorporation of foreign legal principles into the local law for general uses and future applications. If the courts take a comparative approach to the law and find a legal principle or procedure that is believed to be preferable to the local one or where there is no local one at all, they may adopt the foreign law and incorporate it into the local law.

Although the technical legal term foreign law is well understood in current Anglo-American thinking, it may not translate easily into the jurisprudence of the continent. It was not so obvious in the past. Was it conceivable before the rise of the nation state in the early-modern period ? What is its relationship to the concepts of comparative law and conflict of laws ?

The study of the process of the assimilation of foreign law is the scope of this book. The observation of this process in the past in different legal cultures of western Europe is enlightening. It gives a better understanding of the current law by showing how we got to where we are today