Chapter 3 Section 2

Informal (Interpretative) sources of law

In order to apply an unclear provision, judge may interpret the provision by referring to previous courts decisions or to works of jurists.

Sub-Section 1 Legal Precedents Case Law

To answer the question do courts decisions constitutes a source of law or not? Differs according to the legal system whether its the Anglo-Saxon system or Latin system?

1- Common law system (Anglo-Saxon System)

The law of England may be said to be composed of three elements: legislation, common law and equity. When the term common law is used as the opposite of statutory law, firstly: it generally means the body of law produced by decided cases without the aid of legislation. Secondly, it refers to the power of the judges to create new law under the guise of interpreting it () . The English judge is supposed to extract the rules which he may use to decide the case in hand, from previous courts decisions, so he is different from French judge as English judge has the authority to lay down a new principle of law. If he didnt find a suitable solution in a similar previous case but the French doesnt have this authority. (T/F) So, English judge firstly: follows previous legal precedents as it is the main source of law in English system, if he didnt find a suitable principle, he may create a new one. But it must be noted that the judge is not equally bound by all previous decisions; as decisions of inferior courts arent binding upon higher courts. Also courts decisions arent binding upon courts of coordinate authority. (T/F) So, decisions of the court of appeal are generally binding on all courts below. Those of the House of Lords are binding on all courts in the United Kingdom, but not on the house itself.

2- Latin System:
In the French legal system, the judges are not allowed to develop principles of law in their judgments. They only apply law and their decisions can be attacked on the ground that they misapplied the enactment (law) or that they wrongfully neglected it. There is a well-established principle that the judgments made by judges can only have a relative authority limited to the relevant case and obligatory only on the parties of that case. Although French judgments do not by themselves establish rules of law, which are binding in a formal sense; but there is a well-established practice that lower court will normally follow the jurisprudence of the cassation court although they are not legally bound to do so. French judges may also use this jurisprudence to support their interpretation of law but they may not justify their decision upon that jurisdiction. The cassation court opinion is binding in one case as follows: if the court of appeal decision was challenged before the cassation court which admitted the challenge and issued decision, and remitted case to appeal court again, here the appeal court wont be bound by the cassation court decision. (T/F) However if a second challenge (Pourvoi) is presented in the same case, the decision of cassation court will be binding up on the court of appeal to which the case is remitted (). But it should be noted that such a decision is binding in that case only, so if the same point is raised the next day before the same Court of Appeal in another case, the court is free to neglect the cassation court opinion made in the previous case.

3- Egyptian Legal System Position:

In Egyptian legal system, court decisions do not constitute an official source of law. So, if a judge adopted a previous decision in his judgment, this is not because they are binding but because he agrees with the reasoning upon which this decision rested upon so the same conclusion will be reached. Like in France, the judges in Egypt have the power of interpreting the existing rules of law. So, they may discover new principle of law under the cover of interpretation. As legislators cant foresee all the endless issues that may raise disputes, so judges use interpretation to face the problem. It is worth nothing that the decision of the cassation court contains usually the statement referring to what is decided in its previous jurisprudence, but a judge cant justify his decision by this jurisprudence, but he may justify it by the text of which such jurisprudence was a mere interpretation. Like the Latin System, lower courts are not obliged to follow decisions taken in higher courts because this is equal to the criterion of law by higher courts. Because according to the principle of separation of powers as understood in France and Egypt, courts role is not creation of law but it is merely solving disputes by applying law created by legislative authority.

However, due to the establishment of the Court of Cassation in most of Latin countries, things in practice look different because its decisions are respected and lower courts follow the principles which it has adopted, but it is still not binding legally. However cassation court decision is binding in certain cases: Ex1: in case a judgment has been challenged before the cassation court, law obligates the court, to which the judgment is overruled by the Court of Cassation, to follow the principle made by the latter in connection with the legal question raised by the challenge. Ex2: the courts of felonies within Cairos Appeal Court when dealing with challenges against the misdemeanor courts, judgments must follow prevailing legal principles decided by the Cassation Court. If the above mentioned courts rules contrary to those principles, then, the general prosecutor shall ask Cassation Court to submit the matter to the general meeting of criminal matters (in the cassation court) to determine whether to overrule the dissenting (violating) judgment.

Sub-Section 2 Legal Opinion (Doctrine)

Definition and Sources:

By doctrine is meant the whole body of writing about the law made by jurists. It originates from teaching in universities and academic work. Examples of doctrine can be found in students manual, articles in legal journal and notes to cases. The most of the French doctrine contribution has been the notes commenting on cases or giving explanation to it, this provided a bridge of co-operation between doctrine and courts. It should be said that not all notes are the work of academic writers; they may also be contributed by practitioners or by judge (T/F). Beside training new lawyers, and teaching to future judges, legal scholars also contribute in the development of law through their writings by interpretation existing law, and drawing attention to reforms needed to enable the law to meet the needs of society. Any system of law derives its rules from a web of principles which is derived from continuing debate. In Europe, the debate was concluded by jurists in universities and in the literature which emanated from them. In England, before the beginnings of academic writing -in the two decades of nineteenth century- principles were derived from judgments of courts. It is to be noted that profession of law is usually divided into 2 classes: The Bench: the judges The Bar: Who are the advocates of the suitors to courts (lawyers) they usually educate junior members of their profession or compose commentaries upon the law, this represent the academic side of bar the school as opposite to the practical side they do in courts.

Contribution to law development: (Reading)

We can compare the importance if these classes in different countries: In England, the bench is dominant and the decisions of the judges are an authoritative source of law. But the judges in England are selected from among the leading members of the bar, and they carry their practice views to bench so in England professional opinion is merged in precedents. As to the bar, the output of their works on law is great but mostly helps the beginners or gives practical guides for the other lawyers in their everyday work. Because in England the bench gives the law to the bar, and in giving it the judge discusses the principles which he is applying much in the same way as a professional jurist might discuss a book on the subject.