The Rhetoric of Precedent and Comparative Legal Research
| Date | 01 May 1999 |
| Author | Maurice Adams |
| DOI | http://doi.org/10.1111/1468-2230.00218 |
| Published date | 01 May 1999 |
REVIEW ARTICLE
The Rhetoric of Precedent and Comparative Legal
Research
Maurice Adams*
D. Neil MacCormick and Robert S. Summers (eds),Interpreting Precedents: A
Comparative Study, Aldershot: Dartmouth, 1997, xi + 585pp, hb £65.00.
Interpreting Precedents ‘seeks to advance understanding of fundamentals of law
and its methodology through systematic comparative and theoretical analysis’ (p
vii). As its title suggests, the volume focuses in particular on the function, and
functioning, of precedent.1The bulk of the book is devoted to ten country reports,
one chapter for each country studied: Germany, Finland, France, Italy, Norway,
Poland, Spain, Sweden, the United Kingdom and the United States. There is also a
report on the European Community. It is not clear exactly why the above countries
were chosen,2but the choice makes sense since it provides a representative cross-
section of jurisdictions from the civil and common law. Each of the country reports
follows the same structure and seeks to answer the same questions. The volume
closes with six chapters offering general jurisprudential conclusions.
The question of convergence
An obvious distinction between the different legal systems studied is that between
systems of law in which precedents are recognised as a formally binding source of
law (common law) and those in which precedents are not formally recognised as a
binding source of law but where they might be followed implicitly or explicitly
(civil law). The editors acknowledge that the classifications ‘civil law’ and
‘common law’ are unsubtle and, to a degree, misleading in terms of both history and
the present (pp 2–4). There does not exist a unified ‘civilian’ type of legal system,
just as there does not exist a single ‘common law’ type of system. In this study,
nevertheless, the typology serves as a starting point, because the authors try to figure
out, among other things, what differences might exist between the two systems.
The editors state that although it has sometimes been doubted whether
precedents stand for anything at all in civilian legal systems, this study shows
that precedents count for a great deal in such systems. They believe, furthermore,
that during the latter half of the twentieth century there has been a significant
convergence between the two types of system (although important differences still
exist) (pp 2, 546). Indeed,
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
464
* Faculty of Law, University of Antwerp (UFSIA), Belgium.
1 The volume has a companion on statutory interpretation: D. Neil MacCormick and Robert S. Summers
(eds), Interpreting Statutes: A Comparative Study (Aldershot: Dartmouth Publishing, 1991).
2 The Netherlands for example, possessing aspects of francophone and germanic legal culture, would
have been a valuable addition.
To continue reading
Request your trial