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The value of jurisprudence as a creative source of law 2nd Edition

Auteur:Natalia Bernal Cano et al.
Maison d'édition:European Research Center of Comparative Law

The problem of this study consists of identifying the scope and limits of jurisprudence as a result of the creation of law by judges.

We present a perception of jurisprudence and case law according to different judicial systems and any accessory problems, such as the magistracy in different parts of the world, the creation of unwritten constitutional principles by the Canadian Constitutional Court, the changes of jurisprudence in Germany and France, the evolution of the concept of jurisprudence in Europe, the conceptual development of the stare decisis doctrine in the United States, the correction of law through constitutional jurisprudence in the different procedures brought before the Belgian Constitutional Court, the judicial problem of jurisprudence and the law as complementary sources of law, and the presentation of the concept from the point of view of the constitutional process to protect fundamental rights.

The Author attempts to demonstrate that courts are no longer limited to applying the law without engaging in dynamic processes of legal interpretation and presenting different forms of a coherent and reasonable creative power.
The Author presents an inventory of some convergences between the Common Law and Civil Law or Romano Germanic systems, in order to identify a uniform definition of jurisprudence that demonstrates the active work of the courts in changing their decision-making criteria, protecting new rights based on a comprehensive interpretation of the Constitution, and determining the effects of constitutional decisions, among other factors that necessarily influence the creation, evolution and perfection of the law.

May this work contribute to the development of comparative law and, above all, the constitutional integration among the peoples who protect freedoms and rights.

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