Tuomioistuinratkaisut oikeuslähteenä – oikeuslähdeoppi ja oikeusyhteisön kulttuurinen identiteetti
Avainsanat:
ennakkotapaus, stare decisis, oikeusvertailu, oikeuskulttuuri, identiteettiAbstrakti
Lakimies-aikakauskirjan parhaan kirjoituksen palkinto 2020
Judgments as a source of law – The doctrine of sources of law and the cultural identity of a legal community
The article examines judgments as a source of law from a general comparative law point of view by highlighting the significance of legal-cultural identity. In internationally oriented legal scholarship, common law is paradigmatically described as a legal culture based on the doctrine of precedent, while continental European law (civil law) is described as based primarily on legislation. Although the disparity is fundamental, today many comparative law scholars conceive it as flexible as to its nature. The article discusses how established continental European legal scholars habitually construe the status of judgments in their domestic legal systems. The article elucidates why in the civil law legal culture it is persistently maintained that judgments by superior courts are not strictly speaking actual sources of law, albeit that they have a de facto position as a source of law. First, the author looks at scholarly descriptions of the doctrine of sources of law in civil law and how it is explained to differ from common law. Next, these descriptions are critically analysed, after which the importance of legal-cultural self-identification is addressed. The author argues that one key reason for the paradoxical way of describing the civil law doctrine of sources of law – de jure versus de facto – is the maintenance of legal cultural segregation between common law and civil law. Moreover, the author claims that this maintenance has to do with one’s legal cultural identity in relation to foreign legal cultures. To put it simply, a contrasting doctrine of sources of law is what makes us “us” and different from “them” common law jurists.
