Judicial precedents in civil law systems: A dynamic analysis

Fonte: http://www.sciencedirect.com/science?_ob=MImg&_imagekey=B6V7M-4MYMFW0-4-...
Acesso em: 10 nov. 2009.

This paper uses a simple dynamic model to describe the evolution of judicial decision making
in civil law systems. Unlike the common law systems, civil law jurisdictions do not adopt a
stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive
role. Civil law courts are expected to take past decisions into account when there is a
sufficient level of consistency in case law. Generally speaking, when uniform case law develops,
courts treat precedents as a source of ?soft? law, taking them into account when reaching a
decision. The higher the level of uniformity in past precedents, the greater the persuasive force
of case law. Although civil law jurisdictions do not allow dissenting judges to attach a dissent
to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent
among the judiciary. These cases influence future decisions in varying ways in different legal
traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law.
The evolution of case law under these doctrines of precedents is modeled, considering the possibility
for consolidation or corrosion of legal remedies and the permanence of unsettled case
law.
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