- 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
- Award date
- 4 November 2014
- Document type
- PhD thesis
- Faculty of Law (FdR)
- The Netherlands China Law Centre (NCLC)
This study examines how cases fulfil the role of a source of law in one particular continental European civil law jurisdiction: the Netherlands. By doing so, this study aims to achieve two purposes: (1) contributing new knowledge and insights to the existing literature on the role of cases in civil law jurisdictions and (2) deriving insights from the experiences with case law in the Netherlands that may be useful for China, where legal scholars and judges have been actively searching for a workable case law system since the 1980s, to further enhance its case law practice.
Instead of relying on concepts borrowed from the common law doctrine of precedent, this study uses a relatively neutral concept to capture the way cases fulfil the role of a source of law in the Netherlands, i.e. the concept of "case law mechanism", which is defined as a set of institutions and practices in a codified legal system that jointly enable legal norms to be derived from cases through a process of publishing, organizing, interpreting, evaluating and applying court judgments.
The study consists of two parts. The first three chapters focus on the Netherlands and form the first part. The second part, i.e. chapter four, five and six, seeks broader implications of the findings of the first part by placing them in two contexts: (1) the context of the existing literature on the role of cases in civil law jurisdictions and (2) the context of China’s efforts to create a workable case law system.
- Research conducted at: Universiteit van Amsterdam
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