Frédéric Zenati and the judgments of the Court of Cassation
“The supreme courts do not need to persuade because their solutions are law. They do not have to explain himself to anyone because they are sovereign. No proceeding is institutionally empowered to control them. the motivation for their decisions is therefore of no use as a monitoring technique of law enforcement. property more, excessive motivation can undermine the legislative authority attached to it. the law says, it is not justified. the firmness of command is proportional to its brevity. (…) It is for this reason that all supreme courts adopt a brief motivation that leaves little room for discussion and are distinguished from other jurisdictions by a concern . does not enter the details of the argument (…) the imperatoria brevitas is not an aesthetic choice; it is dictated by the nature of the institution. “
To understand this statement, it must be emphasized that for Frédéric Zenati, the French supreme courts produce .
And for those who oppose the example of judgments of foreign supreme courts, here is his response:
“(L) opposition is explained by the difference between the design of the two forms of the Supreme Court, whose methods of unification of judicial practice are not the same. One achieves this by the only moral authority that emanates of its decisions, the other one reached by control and sanction the activities of judges based on case law constitutive norm of a codified legal substitute. one is only a jurisdiction, the other is a vested jurisdiction of a legislative mission. We want to take to a characteristics to improve the functioning of the other may be attractive, but is inconceivable without challenging the legal system itself . Change the style of continental supreme courts in a judicial sense is simply questioning the codification of the law. “
These are extracts from the pages 199-201 of the book Jurisprudence published in 1991 (while it is not young) in Dalloz (coll. Law Methods), which strangely has not experienced reissue since (this is one of the only collection that has not been reissued, which is unfortunate since the book is full of shells and some parts have great need to be dusted).
- A. Touffait and A. Tunc, “For a more explicit motivation of judicial decisions, including those of the Supreme Court,” RTD Civ. 1974, p. 487.
- R. Lindon, “Motivation of judgments of the Supreme Court”, JCP, 1975 I, p. 2681.
- Mr. Libchaber, “Back on the motivation of the judgments of the Court of Cassation, and the role of doctrine”, RTD Civ. 2000, p. 679.
- F. Berenger, motivation judgments of the Court of Cassation, PUAM 2003.
- S. Gjidara, “the motivation of judicial decisions: old imperatives and new requirements”, LPA, 26 May 2004, p. 20, No. 60.
- J. Ghestin, “The interpretation of a judgment of the Supreme Court,” D. 2004, chron. p. 2339.