5.13 How to handle Community law reports It is now important to sum this section up by looking at the issues surrounding the reading of Community law reports and reflecting on the development of reading skills. All legal systems have some appreciation and acknowledgment of precedent. The Community legal order is an artificially created legal system that draws on the legal systems of the Member States for the establishment of approaches to interpretation and law making in relevant areas. The majority of Member States operate from a Civil Code legal system unlike the UK’s preference for a common law system. Because of the familiarity of most Member States with civil law systems and the fact that all of the founding members were nation States with civil law systems, the European Community’s legal system is deeply embedded in the civil system. In the English law’s common law tradition, the legal theory underpinning the practical approach to decision making in the law courts is the declaratory theory This states that when a judge in court is deciding a case he declares in his decision what the law is. The case can then become an important precedent, as it states the law and determines when other courts must follow it. One case can determine and preset the law within the limits of the doctrine of precedent. In civil law systems codes are used to organise areas of law. All civil systems are based in different ways on Roman law where the legal theory position is that when a judge in a court makes a decision about the law, that decision is evidence of the law. The ECJ, not surprisingly, when setting up legal principles that apply across all cases, drew upon the legal experience of all Nation States, but the minority approach of the English legal system is not the approach in the Community legal order. As you will remember from Chapter 3, in the English common law system decisions of the courts are the law, rather than evidence of what it is thought to be. Through the system of precedent in the English legal system, previous court cases and law cases are presented to the court as precedents. But this is not the case in the ECJ where arguments consider other cases and other documents and practices in order to present what may seem appropriate principles of the law. It should have been apparent from the previous chapter and the discussion in that chapter on the doctrine of precedent that English law, despite its theoretically rigid binding nature, is extremely flexible in the mouths of judges. It may seem odd that there is a lack of precedent in the ECJ. But the ECJ has a determination to carefully develop and keep legal principles which do give a great deal of consistency and coherence to Community law. Commentators have noted that it has now become normal and accepted for courts to refer to earlier cases and use these earlier cases as the rationale for decisions, which begins to feel like precedent. However, even given these suggestions of openness to the concept of precedent there is no suggestion that the ECJ would ever reach a decision that it did not want to purely because of other cases deciding matters differently. The reverse could, however, occur in the English legal system.

Abstract

5.13 How to handle Community law reports It is now important to sum this section up by looking at the issues surrounding the reading of Community law reports and reflecting on the development of reading skills. All legal systems have some appreciation and acknowledgment of precedent. The Community legal order is an artificially created legal system that draws on the legal systems of the Member States for the establishment of approaches to interpretation and law making in relevant areas. The majority of Member States operate from a Civil Code legal system unlike the UK’s preference for a common law system. Because of the familiarity of most Member States with civil law systems and the fact that all of the founding members were nation States with civil law systems, the European Community’s legal system is deeply embedded in the civil system. In the English law’s common law tradition, the legal theory underpinning the practical approach to decision making in the law courts is the declaratory theory This states that when a judge in court is deciding a case he declares in his decision what the law is. The case can then become an important precedent, as it states the law and determines when other courts must follow it. One case can determine and preset the law within the limits of the doctrine of precedent. In civil law systems codes are used to organise areas of law. All civil systems are based in different ways on Roman law where the legal theory position is that when a judge in a court makes a decision about the law, that decision is evidence of the law. The ECJ, not surprisingly, when setting up legal principles that apply across all cases, drew upon the legal experience of all Nation States, but the minority approach of the English legal system is not the approach in the Community legal order. As you will remember from Chapter 3, in the English common law system decisions of the courts are the law, rather than evidence of what it is thought to be. Through the system of precedent in the English legal system, previous court cases and law cases are presented to the court as precedents. But this is not the case in the ECJ where arguments consider other cases and other documents and practices in order to present what may seem appropriate principles of the law. It should have been apparent from the previous chapter and the discussion in that chapter on the doctrine of precedent that English law, despite its theoretically rigid binding nature, is extremely flexible in the mouths of judges. It may seem odd that there is a lack of precedent in the ECJ. But the ECJ has a determination to carefully develop and keep legal principles which do give a great deal of consistency and coherence to Community law. Commentators have noted that it has now become normal and accepted for courts to refer to earlier cases and use these earlier cases as the rationale for decisions, which begins to feel like precedent. However, even given these suggestions of openness to the concept of precedent there is no suggestion that the ECJ would ever reach a decision that it did not want to purely because of other cases deciding matters differently. The reverse could, however, occur in the English legal system.