Judicial Lawmaking and Precedent in Supreme Courts

Abstract

What does it mean for a supreme court to 'make law'? When is it possible to say that its decisions are 'precedents'? To what extent should a supreme court's pronouncements be taken into account by others -lower courts and political branches? And how should these other actors reason with such precedents? This article shows how a particular approach to judicial lawmaking and precedent shapes answers to these questions and examines them in relation to the US Supreme Court and the French Cour de cassation. The findings are then used for a critical analysis of the European Court of Justice's case law. It is suggested that while the US and French systems have found some ways of reconciling judicial lawmaking with the basic premises of their constitutional and political systems (although they are not entirely satisfactory), the EU system is still waiting for an account of the Court's lawmaking and precedent. The conclusion indicates directions of possible further research relevant for all courts examined.

DictumonDicta:Obiter Dictain WTO Disputes

“…66 While there have been references to the jurisprudence or the jurisprudence constante of the Cour de cassation (Court of Cassation), the fact remains that 'the Cour de cassation's jurisprudence is not officially binding on the lower Courts' and 'French lower courts are always free to depart from the Cour de cassation's jurisprudence'. 67 Indeed, as noted by de S.-O.-I'E. Lasser, the French Cour de cassation is rather annoyed with the lower court's reference to its 'so-called jurisprudence', and jurisprudence of the Cour cannot be cited by lower courts as the legal basis for overturning a decision.…”