From Case to Law: A Study on How Cases Fulfil the Role of a Source of Law in the Netherlands and its Implications for China and Comparative Law (1)

By: William W. Guo

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Synopsis: This book provides an in-depth account of how judicial decisions are published and used in the Netherlands as a source of law. The findings are linked to the existing English-language literature related to the role of cases in civil law jurisdictions in order to seek new insights that may enrich this body of scholarly writings. This book also describes the efforts of China since the 1980s to create a case law system, and explores the possible implications that can be drawn from the experiences with case law in the Netherlands for China to further enhance its case law practice. Contrary to the commonly adopted result-oriented approach, this study experimented with a processual approach to study the role of judicial decisions as a source of law in a codified legal system. It is submitted that cases cannot be said to be purely judge-made law in a civil law jurisdiction, as this study demonstrates that which judgments eventually become the leading cases that shape the law depends on the outcome of a process of rational discourse in which not only judges, but also other actors such as legal scholars and practising lawyers participate and exercise influence.