Abstract:
In comparative study of common law and civilian legal analysis, many scholars have noted a convergence in the two systems' use of precedent cases. Although common law legal theory historically has started from a position that judges are fully competent to create law and change the law through their adjudication of cases and the judicial opinions they write, and civilian theory historically has started from a position that judges are not empowered to create and change the law enacted by the legislature but rather are to read and apply the existing law to new cases, the practice of tribunals within the two families of legal analysis has not reflected clear distinctions in the approach to and use of precedent. Civilian judges refer to case law and acknowledge the persuasive effect of precedent on their determinations, and common law judges have become more civilian in their respect for legislative authority to enact laws that determine cases. A common law approach to precedent includes the theory of stare decisis, that decisions of courts in a proper position in the hierarchy of judicial authority of the appropriate jurisdiction shall issue opinions that are binding on lower courts within the same hierarchy, but it is no longer a safe proposition to suggest that a civilian judge will not find precedent to be binding and will not follow the guidance of prior judicial determinations in the adjudication of a new dispute. Similarly, a common law judge may go to extreme lengths to distinguish precedents, and precedents of the same court or same level of court will be rejected from time to time - reversed, abrogated, modified, or replaced - in the name of progress and justice.
The purpose of this article is not to trace the exact points of convergence and comparative divergence in the use of and reliance on precedent. Rather, I use this convergence as a platform for the discussion of explanatory synthesis and rule synthesis. Explanatory synthesis, the inductive use of precedent in a demonstrative and persuasive presentation of how the law should be interpreted and applied, may be distinguished from rule synthesis because it does not depend on the precedent being binding or on the application of any form of the doctrine of stare decisis. Explanatory synthesis as a form of legal analysis relies on the open, scientific, inductive structure of the analysis and the use of multiple precedents for the accuracy and reliability of its predictions and conclusions. Rhetorically, explanatory synthesis relies on the structure of mathematical-scientific induction within a familiar deductive syllogistic structure, and on the open, demonstrative, and falsifiable analysis of multiple authorities both to create knowledge and understanding and for persuasive advocacy.
Murray, Michael D., Explanatory Synthesis and Rule Synthesis: A Comparative Civil Law and Common Law Analysis (September 26, 2011). Bahçeşehir Üniversitesi Hukuk Fakültesi-Kazancı Hukuk Dergisi, Vol. 139, pp. 83-84, 2011.
