Il ruolo del precedente giudiziale nell’esperienza francese. Forme e riforme

Abstract

The paper seeks to shed new light on the controversy in France over the role of the judiciary in the lawmaking

process in the context of recent reforms that have changed the structure and the mode of publication

of the Cour de cassation’s judgments.

Part I examines the controversy within a group of related issues that pertain to the uniqueness of the French

legal style, with priority of focus given to the understanding of the manifold and essential conditions underlying

the ‘derivative’ authority of judicial decisions.

Part II explores aspects of judicial practice that are of paramount importance in assessing the actual operative

authority of the French Supreme Court, going beyond and functioning despite its seemingly deficient

argumentative legitimacy.

Part III makes an analysis of the debate in French law over the reversal of precedents and their retroactive

effects, that has revived policy discussions with respect to the promotion of ‘legal certainty’ through a more

‘realist’ approach to the function of judgments.

Part IV and Part V deal with new perspectives on judicial precedent opened up by the newborn awareness

of the importance of the quality and intelligibility of Cour de cassation’s judgments, as well as by the various

legal mechanisms allowing the Court to arrange them hierarchically.