The Role of Case Law and the Prospective Overruling in the Greek Legal System

Abstract

The sources of Greek Civil law are traced back to the Roman-Byzantine Law as enshrined in the Hexavivlos, hence linked to the legislation of Justinian, Roman law and fundamental principles as expressed in the Pandects. The sources of Greek law are statutory legislation and customs. The former enjoys a clear quantitative and qualitative superiority. With regard to international law, dualism is the prevailing theory, while acquis communautaire enjoys undisputed supremacy. Positivisation of legal principles may be viewed as a means of convergence between idealism and legal positivism. The legislator enjoys the legislative prerogative, not reaching, though, the point of legislative monopoly. Judicial rulings do not qualify as a source of law; by contrast, they are only binding as to the specific case under judicial review (res judicata). Precedent creates no binding effect to any judge; however, any deviation should be attempted in a sparing manner for the sake of legal certainty and foreseeability. Settled case law and particularly that of the Supreme Courts may, though, be regarded as an indirect source of law with a quasi legislative and superior persuasive power. By way of exemption, case law is recognized as a source of law in the field of administrative law where violation of judge-made rules may give reason for annulment. The notion of prospective overruling is not encountered in the Greek legal system where any judicial ruling may only have a ‘retrospective’ effect, while statutory law has almost exclusively prospective effect.