Abstract
This paper explains the status of jurisprudence and legislation as the main sources of law in common law and written law traditions. It is argued that lawyers’ attitude toward aforementioned sources within both traditions has changed during recent decades. Indeed, plurality of the legal sources ...
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This paper explains the status of jurisprudence and legislation as the main sources of law in common law and written law traditions. It is argued that lawyers’ attitude toward aforementioned sources within both traditions has changed during recent decades. Indeed, plurality of the legal sources has been recognized gradually due to relative advantages of both sources. It is maintained that judicial lawmaking can be deemed as complementary source of law alongside legislation. In practice, based on this premises, it is explained that in some jurisdictions, lawyers and legal scholars within written law tradition have recognized more important role of jurisprudence in their lawmaking process. Traditional views towards the role of the judges as mere interpreters of Statutes have changed and their constructive role in developing the legal system as lawmakers has been recognized. It is claimed that decentralized lawmaking (or law finding) system is more appropriate for liberty and market oriented economy. It is believed that judge made law is more efficient than legislation. In contrast, supporters of legislation emphasis on some values such as certainty, clarity and predictability of law making through legislation. Finally, it is suggested that status of jurisprudence within domestic legal system shall be reviewed by Iranian lawyers.
Homayoon Habibi; Soodeh Shamloo
Volume 15, Issue 41 , December 2014, , Pages 71-114
Abstract
Absract In its normal practice the ICJ settles International disputes exclusively in accordance with International law and where there is an absence of law, it abstains to make new laws as to substantiate its decision. Beyond its primary function as to settle disputes between states however, the Court ...
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Absract In its normal practice the ICJ settles International disputes exclusively in accordance with International law and where there is an absence of law, it abstains to make new laws as to substantiate its decision. Beyond its primary function as to settle disputes between states however, the Court is actively involved in the development of international law through its production of precedent. Development involves change and creativity which may not be obtained solely by applying positive law. The Court being conscious of its limits imposed both by its statute and general expectation of states, has somewhat diverted from rigid positive approach and has made attempt to fulfill its primary function without jeopardizing legal limits. It contributes in development of international law inter alia by teleological interpretation of existing rules. On the other hand, even though the characterization of precedent or stare decisis may not apply to the decisions of the ICJ, the Court constantly refers to its precedent and thereby has promoted the importance of its judgments from an auxiliary to a real source of international law.
