LEGAL SYSTEM

SOURCES OF LAW

The Russian legal system is a civil law system conceptually based on statutes and codes. The statutory provisions are rather abstract and require interpretation when they are applied to a particular legal relationship or in a court case.

Being a federal state, the Russian legal system comprises federal and regional statutes and codes. The Constitution of the Russian Federation (the Constitution)1 draws a fundamental borderline between the competence of the federal and regional authorities. A more detailed division of powers is provided by federal agreements between the Russian Federation and its regions. For example, civil, criminal, tax, customs, land, forestry, water resources, inland water transportation, and civil and criminal procedure matters are regulated at the federal level. Centralised regulation of fundamental matters under federal legislation creates a homogeneous legal environment in all regions of the Russian Federation and consequently, as will be discussed further below, a rather unified application of law by Russian courts.

The statutory law regulates nearly all spheres of activities and is regularly supplemented and amended by the legislator. In those fields where there is less or no statutory regulation, sub-laws fill the gap.

A large part of Russian legal acts are sub-laws enacted by the state executive bodies and other state organs.

Although there is no statutory definition of the hierarchy of sources of law, it is accepted doctrinally2 that the sources of law form the following hierarchy:

• 1. the Constitution;

• 2. ratified international treaties;

• 3. federal constitutional laws; and

• 4. federal codified laws (codes) and federal laws.

INTRODUCTION

Precedent is rooted in the doctrine of stare decisis, which in fact corresponds to the reduction of the legal maxim stare decisis et non quieta movere (‘to stand by and adhere to decisions and not disturb what is settled’). In Brazil, this doctrine has been embraced to express the idea that the courts, through their decisions, are expected to convey certainty, confidence, equality, and efficiency.

In a broad sense, a precedent is commonly referred to as a judicial decision rendered to address a legal dispute, which may potentially serve as a basis for resolving future cases based on the factual similarities between the cases.

The use of precedent does not require that the facts – between the two cases, previous and subsequent – are absolutely identical, as no legal proceeding is entirely identical to another. The use of precedent presupposes the identification of pertinent factual similarities between the two cases. It is essential to discern what is important and what can be disregarded in order to resolve the dispute, employing precedent techniques.

In Brazil, the assertion that precedent serves as a source of law has gained prominence. For this reason, precedent is equated with other formal sources of law (such as statutes, decrees, regulations, etc.). Consequently, whenever a judicial body is called upon to decide a similar legal issue, it cannot depart from the precedent to apply a different rule.

A GENERAL INTRODUCTION TO LEGAL PRECEDENT

The South African legal system is of comparative interest for two main reasons. The first is that it is a mixed legal system, blending civilian and common-law elements. The second is that in the mid-1990s, when the racist and authoritarian system of apartheid was replaced by full democracy, the country enacted a famously ambitious Constitution. Both these features have important implications for the role of judicial precedent in South Africa, as this contribution to the volume will discuss. This contribution introduces the country's doctrine of precedent in Section 1. and sketches its historical background in Section 2. Sections 3. and 4. discuss the mechanics of the doctrine's operation. Sections 5. and 6. situate the role of precedent in a wider geographical, theoretical, and methodological context. The main themes are summarised in the conclusion.

South Africa adheres to a doctrine of judicial precedent (or stare decisis) on the same broad model as England and Wales and other common law jurisdictions. The South African doctrine of precedent arose in the early nineteenth century through judicial custom. For over 150 years, it had no statutory or constitutional authorisation. However, the courts have recently held that respect for precedent is an incident of the rule of law, which is one of the founding values of the new Constitution.

INTRODUCTION

Does China embrace a ‘case law system’? The title of this contribution suggests that an affirmative answer should be given. However, much seems to depend on how ‘case law’ or ‘precedent’ is defined. If generally understood as ‘a past event – in law the event is nearly always a decision – which serves as a guide for present action’ or ‘prior decisions that function as models for later decisions’, ‘case law’ or ‘precedent’ appears to have existed for a long time in the history of China. It is commonplace that even in today's Chinese courtrooms, judges routinely look at past cases when adjudicating the dispute at hand. However, if a stronger common law sense is given to the term, such as by equating ‘precedent’ with ‘any past constitutional opinions, decisions, or events which the Supreme Court or nonjudicial authorities invest with normative authority’, then it is clear that ‘case law’ in the Chinese context is dissimilar to and much broader than what ‘precedent’ strictly connotes.

The present contribution intends to offer an overview of the Chinese ‘case law’ system, attempting at times a deeper exploration into some of its key features. By ‘case law’, the more relaxed definition above is preferred but it is envisaged that two preconditions must be met. First, ‘case law’ is predicated on a court rendering an effective decision (including judgment and ruling/award) in the adjudication of a real-life dispute. Any other sense in which the term ‘case’ or ‘precedent’ is used, such as an example set by any other body or in any other process, however authoritative it might be, is not accommodated here.

A GENERAL INTRODUCTION TO LEGAL PRECEDENT

The doctrine of precedent is fundamental to the common law system, and therefore to English law – the law of England and Wales. Other common law legal systems around the world, which have drawn their systems from English law, share an understanding of the need for a system of precedent as an inherent feature of the common law method, but their details are inevitably different, and this contribution will discuss only the doctrine of precedent as it has been developed and now applies within English law.

There are two separate aspects to precedent. In its most general form, the doctrine of precedent is based on the principle that judicial decisions (case law) are a source of law, operating alongside but independently from legislative sources of law. However, once it is accepted that case law constitutes a formal source of law, a second question arises: how binding is the judicial decision given by a court in any particular case? The answer to this second question will lead to the detail of the doctrine of precedent, and its role within the English legal system, which will be discussed in the following sections. A general discussion of the issues will first be given here.

1.1. CASE LAW AS A SOURCE OF LAW IN ENGLISH LAW

It is of the essence of a common law system, such as English law, that judicial decisions are accepted to be a source of law – not only historically, but also in the modern, living law.

A GENERAL INTRODUCTION TO JUDICIAL PRECEDENTS IN ITALIAN LAW

Under Italian law, judicial precedents are formally not recognised as an independent source of law. In fact, the hierarchy of legal sources established by the Civil Code does not recognise case law as an independent source, in line with a formalistic and positivist approach rooted in the theory of the separation of powers: judges, who are not democratically selected and accountable, can only interpret and apply the law, but not make it. The declaratory theory of case law formally still applies, but in fact all lawyers, both academics and practitioners, as well as the general public, are acutely aware of the fundamental role that case law plays in establishing the law. There is no legal area where it is possible to understand the law only through the applicable statutory rules; in most areas, case law is a crucial component, and this is definitely true also in private law.

The law in the books/law in action cleavage in case law also affects the position of judicial precedents among the sources of law. The specific features of the Italian legal (and particularly the judicial) process, and more generally the structural features of the Italian legal system, tend to stress the importance, rather than of individual judicial decisions (i.e. a judicial precedent in its proper meaning), of a coherent line of judicial decisions that establish a rule (giurisprudenza consolidata or conforme). This feature implies a very different role of case law compared to other systems (of which the English one is the quintessential example), where every precedent establishes a rule that must (under certain conditions) be followed by other judges.

A GENERAL INTRODUCTION TO LEGAL PRECEDENT

A precedent is a court decision on a legal issue which is raised anew in a subsequent case. In the German legal usage, the term precedent (Präjudiz) does not imply any statement as to its binding force because German law does not recognise the principle of stare decisis. In the absence of explicit legal requirements, the role of precedents in private law has, due to the importance of legal decisions, always been controversial in jurisprudence. Related to the question of their binding nature is the question of their legal source quality. From a constitutional perspective, any binding effect can be disputed, for example, because the judge is bound only by law and statute, but not by precedent.

CONCEPTUAL DELIMITATION

Among the sources of law, precedent must be distinguished from statutory law and customary law.

Statutory Law and Precedent

The most important source of German private law is statute. Unlike past codifications, today's statutes lay down the legal position using abstract rules rather than casuistry. Being bound by the rule of law under Article 20(3) of the German Constitution (GG), courts must apply these abstract rules in their decision-making. Due to the abstract and general character of statute, a rule of the German Civil Code (BGB), for instance, applies to a multitude of different cases, whereas judicial precedent applies only to the specific circumstances.

A GENERAL INTRODUCTION TO LEGAL PRECEDENT

SOURCES OF SWEDISH LAW

Swedish law does not belong to the common law or the civil law legal families. It is in a legal family of its own, together with the law of Denmark, Finland, Iceland and Norway. This Nordic legal family is a mix between common and civil law. Although Swedish lawyers perceive themselves as closer to civil law – mainly the German legal family – Sweden lacks a coherent all-encompassing civil code. Its statutes are fragmentary and non-hierarchal. Many of the private law rules are ‘unwritten law’, i.e. not codified in statutes.

Sweden lacks legislation on the sources of law. Legal scholars and courts generally agree that precedents from the Supreme Court are a source of law.

Whether there is any hierarchy among various sources of law is disputed, but everyone agrees that after statutory law, precedents and preparatory statutory works are important sources of law.

THE SWEDISH COURT SYSTEM

Sweden has two supreme courts, one for criminal, private and procedural law, and another for administrative law. Specialist courts deal with certain areas or matters of law. For example, labour law disputes are resolved by a special court. This contribution will only refer to the Swedish Supreme Court (for criminal, private and procedural law), as the Swedish Supreme Court for Administrative law is not relevant for this volume

GENERAL INTRODUCTION

THE COMPARED JURISDICTIONS

This book is aimed at analysing how court decisions (precedents) function as a source of law in various jurisdictions. It compares jurisdictions from all over the world, from different legal families and with diverse legal traditions. Only the contribution from England and Wales represents a ‘pure’ common law jurisdiction. South Africa represents a mixed jurisdiction with a fairly new constitution. Traditional civil law jurisdictions are represented by the French legal family (Brazil, France and Italy) and the German legal family (Germany). The Nordic legal family is represented by Sweden. China and Russia are civil law systems that display interesting new developments.

The contributions provide stimulating materials for comparison since they are similar, yet different enough for a comparative analysis. Such similarities and differences comprise, for example, their traditional and modern attitudes towards precedent, their court systems as well as their division of the roles of the judiciary and the legislature.

WHY PRIVATE LAW?

This book focuses on private law. This is a particularly interesting area of law to compare for two reasons. First, precedents are less controversial in private law as the democratic deficit is less significant compared to other areas of law. Second, statutory private law often needs to be supplemented and developed by precedents due to a need to fill gaps or to interpret abstract statutory texts.

A GENERAL INTRODUCTION TO LEGAL PRECEDENT

In France, precedent is perceived as constituting a concept specific to common law systems. It is therefore usually equated with the French term jurisprudence. However, what characterises jurisprudence in French law is that it officially has no binding force, since there is no principle of stare decisis. The status of precedent in the civil and common law systems thus constitutes their fundamental difference. The lack of legal authority of case law is essentially due to two provisions of the French Civil Code. Firstly, Article 5 of the Civil Code prohibits judges from issuing rulings by way of general and regulatory provisions. Secondly, judgments, whatever they may be, have effect only for the parties, in accordance with the principle of relative res judicata, enshrined in Article 1355 of the Civil Code. On the other hand, in the field of private law, case law, especially that emanating from the Cour de cassation, would be given genuine de facto authority, which would take the form of two complementary rules, similar to the horizontal and vertical dimensions of precedent in common law countries. First, a ‘law of continuity’, whereby ‘what the Cour de cassation has ruled in the past, it will rule in the future’. Secondly, a ‘law of imitation’, according to which ‘what the Cour de cassation has ruled, lower jurisdictions will rule’. The mystery that surrounds precedent in French law is therefore the result of a significant gap between what is said and what is actually done, a gap that has nevertheless tended to narrow in modern times. The official status of precedent is gradually evolving, with difficulty detaching itself from the history that has shaped it.

INTRODUCTION

The previous two chapters have been devoted to the discussion of the scope of EU competence in child relocation and the European framework of fundamental rights respectively. It has been shown that the EU competence is heavily limited, and the jurisprudence of the ECtHR leaves national authorities with a wide margin of appreciation in child relocation. Having highlighted how these discussions constitute an important point of reference for the analysis of child relocation as a restriction of EU free movement, it is now time to consider how the CJEU could legitimately interpret EU law if a child relocation case ever came to the Court. While family law remains among the areas of law most closely associated with national sovereignty and no legislation on child relocation exists on the EU level, EU law has long been recognised as capable of influencing such national law, with the CJEU being the ‘real engine’ of the process via its interpretations of the free movement provisions. Free movement is, indeed, the main trigger for a closer scrutiny of national child relocation provisions and measures in the EU context. The literature recognises that restrictions on child relocation might potentially be perceived as a restriction of EU law, requiring an adaptation of national child relocation laws and approaches to EU legal obligations. The first discussion of child relocation in the EU context goes back to the times of workers’ mobility provided by the Rome Treaty, but it is, in particular, the current legal framework expanded by the EU citizenship provisions that calls for more research on the topic, as outlined by Ruth Lamont.

INTRODUCTION

Europeanisation in family law, as a background metaconcept, has been understood and explored in many ways. Typically, it is perceived as a process of convergence driven by EU harmonisation of certain family law matters or a form of compliance with EU law obligations set out by the CJEU (the so-called ‘judicial Europeanisation’). What the first explains are the dynamics and outcomes of European law-making, while the second focuses on the scope of legal pressures coming from Luxembourg and subsequent adjustments on the national level. The book has already discussed cross-border child relocation in reference to both understandings, but neither can reveal much about the actual domestic effects of EU law on cross-border child relocation law at the present time. This is so because there is no EU legislation and no CJEU judgment on child relocation, and hence the nature and scope of any adaptational pressures remain unclear. This state of legal uncertainty creates simultaneously an opportunity to draw from EU law and a chance to ‘escape’ any perceived legal pressures. The previous chapter demonstrates, at the same time, that the influence of EU law might have a much more complex nature than its doctrinal obligations. In particular, the normatively inflicted methodology of EU law and its contextual constructions might provide relevant reference points for cases where EU mobility can constitute a legally relevant context.

INTRODUCTION

The existing literature on child relocation in the EU does not engage with fundamental rights in detail. However, with the EU Charter of Fundamental Rights becoming the EU's ‘third foundational treaty’, the analysis of child relocation within the EU legal context must take due account of the European fundamental rights framework. The role of the CJEU as an adjudicator of fundamental rights in family matters has indeed been growing over the years, but – due to the competence limitation – remains of indirect relevance for substantive family law, even if it directly influences the scope and nature of other EU law obligations. It is Europe's other supranational court – the European Court of Human Rights – that is the major player in family law, including matters of parental responsibilities and contact rights. According to Article 52(3) of the EU Charter of Fundamental Rights, rights contained in the EU Charter should be interpreted in line with the ECHR provisions that correspond to them, and therefore an analysis of the ECHR and the jurisprudence of its guardian, the ECtHR, are of direct relevance for EU law.

While these themes are not prominent in the EU-focused literature on child relocation, child relocation has been framed in human rights terms at large and discussed in the context of the European Convention on Human Rights more specifically.

INTRODUCTION

Family law has always been a highly sensitive area. On the one hand, it is traditionally considered to be closely related to national identity and cultural values, subject to the so-called ‘cultural constraints argument’. This argument about the unique cultural character of family law provisions has often been raised as an objection against its harmonisation and has been, in principle, recognised also by EU institutions. On the other hand, European family laws are said to belong to a pan-European culture that, while subject to national variations, makes family law designs rather contingent on political forces that are relatively ‘fluid’, leaving the question of harmonisation of family laws open. Notwithstanding whether the ‘cultural constraints argument’ is empirically true, it causes great controversies regarding the EU intervention in family matters. These controversies are multiplied by the alleged integrationist agendas behind the EU actions, the sometimes-questioned value of the existence of separate EU regimes (along those of global reach), and the potentially far-reaching consequences of such interventions for national autonomy. Critics of EU intervention in family law have always feared that this activity – formally limited to matters with cross-border implications – will spill over into more and more areas of substantive family law. This fear was not entirely unfounded, given the many voices from the scholarly community or EU institutions arguing that substantive harmonisation is not excluded, constituting both a natural follow-up and a necessary step to truly remove all the barriers to the free movement of pers

CROSS-BORDER CHILD RELOCATION: THE DYNAMICS OF EUROPEANISATION

Substantive family law is a firmly established and consistently defended competence of the Member States. And yet, in more and more cases family entitlements and EU citizenship rights intersect. This is demonstrated by the growing number of judgments in which the CJEU touches upon family matters, albeit often indirectly via the EU free movement and non-discrimination frameworks. Free movement is explicitly what might bring cross-border child relocation within the scope of EU law. It is, therefore, unsurprising that scholars and practitioners alike have expressed an interest in the legal obligations that EU law does or could impose on national child relocation laws. While EU legal actors have not yet acted in this field, the literature recognises that child relocation laws, with their potential effects on free movement, might prompt an interest of EU legislators in their harmonisation. EU law, due to its power to remove obstacles to free movement, is also potentially attractive to relocating parents involved in such disputes. Some are more welcoming of change that might be brought by EU law and others fear its potentially erosive effects. At the same time, EU citizens already cross borders in a world with the EU, where social reality and the legal frameworks of mobility necessarily intersect. National family laws are, therefore, increasingly faced with the need to accommodate the trans-border and multicultural features of transformations characterising modern family life, and child relocation law is no exception – with or without any EU intervention. However, not much is known about how national decision-makers currently approach EU law in child relocation cases, if at all.