The Reality of the “Source” Role of Jurisprudence in Civil Law…“Legal Realism”: A Comparative Study between the French and Arabic Schools An example of Egyptian, Syrian and Lebanese Law
Prof. Mohammad Erfan Al Khatib
Professor of Civil Law – Ahmed bin Mohammed Military College – Qatar
The research presents an original academic study that examines the fact of the source role of judicial jurisprudence in civil law, within the French and Arabic schools, accredited as an expression of the latter, on both Egyptian, Syrian and Lebanese law. The aim is to prove the reality of this role, through careful reading of the innovative role of the civil judge, as one of the tools contributing to the formation of legal thinking crystallized to the positive legal rule issued by the legislator as a prelude to reconsidering the traditional position towards it, to enable it to take its due position within the civil legal system of these countries. It also represents a hope in making an Arab contribution that helps in achieving a greater understanding of this role in the French and Arabic schools. This is in accordance with a comparative critical analytical method, presented in the first section, for an in-depth analysis of the nature of the innovative judicial work. In the second section, the research deals with the actual sharing of the process of drafting the legal text between jurisprudence and legislation.
The research has proven that the legal rule, if it is based on the two dimensions: objective “analysis” and configurable “version”, the real innovation feature of it is based on the objective, not formal dimension; proving that the judge, in deep rooting, is a maker of legislation that does not speak, while the legislator is the speaker, not the maker. In conclusion, in both schools, the legislator had a careful and effective review of the reality of this role, in order to give it the required formal recognition, in terms of its actual, not artificial, role, as well as the position it deserves in the legal progression of the sources of law within their legal systems.
These are two simple yet difficult wishes. They are simple in theoretical analysis, but more difficult when it comes to practical application. The difficulty arises due to the philosophical and intellectual legacy of the authority of legislation on the jurisprudence in the Latin school and the founding root of these two schools. This, however, does not mean that they are impossible to be achieved in the coming days.
Keywords: jurisprudence, judicial decisions, judge’s innovative role, legal principles, explanatory laws.