Forms and Precedents is a comprehensive set of non-litigious forms and precedents covering a wide range of topics relevant to the law practitioner across 28 volumes.
Precedents are drafted by experts in each field and are authoritative and reliable, being updated regularly with changes in the law. Precedents are preceded by preliminary notes to place the precedents in context and provide a legal framework. The precedents clearly indicate where information needs to be added and this makes them very easy to use and adapt. All precedents are available electronically, even if the printed work is purchased, so no retyping is necessary.
Where appropriate, forms are reproduced from the relevant Act or regulation and checklists are included. Convenient Shopping. Forms and Precedents 27 Vol set Forms and Precedents is a comprehensive set of non-litigious forms and precedents covering a wide range of topics relevant to the law practitioner across 28 volumes.
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Publisher: LexisNexis South Africa. Publication Language: English. Select a format. After an introduction chapter 1 , Jacob lays the conceptual groundwork for his analysis with a chapter on the notion of law made by the Court of Justice of the European Union CJEU , i.
The analytical heart of his study is presented in the following three chapters where he scrutinizes the manner in which the CJEU refers to precedents chapter 4 and how the court employs the avoidance techniques of distinguishing chapter 5 and departing chapter 6. The three chapters show the clear focus of the study: Jacob is concerned with the influence of precedent on the CJEU itself; the effects of precedent on political actors or on the judiciary of the member states are beyond the scope of the book and play only an incidental role. Turning back to the specific legal perspective he approaches the question of how to conceptualize the normativity of CJEU precedents chapter 8 , and concludes with suggestions on how the court could enhance its legitimacy through modifying the manner in which it uses precedents chapter 9.
Before dealing with the effects of precedent in detail, Jacob tackles the question of whether the CJEU is limited to applying law or whether the court can actually make law.
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With regard to this question he rightly rejects any exclusive or extreme position and opts for a middle ground. At the other end of the theoretical spectrum, Jacob identifies various pragmatic approaches which acknowledge that judges do more than simply apply the law, such as decisionism, legal realism, or theories close to or inspired by political science. While such a conceptualization is, of course, exemplary and rather simplistic, it nevertheless allows the author to carve out the fundamental lines of legal thinking, their advantages, disadvantages, and shortcomings.
Such a broad conception of law and legal pronouncements, however, comes with the inherent danger of dissolving normativity into diffuse forms of legal information. After all, if anything qualifies as legal information, what is the difference between legislative acts, judicial precedents, and academic pronouncements on legal questions? While Jacob does not deny the differences between those types of legal information, distinguishes legislation from adjudication, and rightly points out the complementary nature of legislation and adjudication in establishing the content of law, those differences remain rather vague and under-analyzed.
Jacob shows that the CJEU not only makes reference to precedents in different ways, but also employs them within different functional contexts, for example, in order to state the law, to interpret a specific provision, or to justify an interpretation it has already arrived at on the basis of substantive reasoning. Accordingly, close attention has to be paid to the specific manner and function of precedent use by the court. Jacob convincingly argues that the way in which the court employs precedent is not so much determined by a specific methodological or theoretical conviction about precedent, but rather depends on the specific context in which the court decides a case.
Turning to avoidance techniques, Jacob deals with the well-established concepts of distinguishing and departing. Again, his analysis reveals that the court employs these techniques in different ways and with a high degree of flexibility. In general, the analysis shows how the court regularly shies away from openly overruling itself and departing from precedents and instead resorts to different techniques of distinguishing, thereby at times implicitly modifying or even overruling precedents without explicit acknowledgment.
Jacob shows in detail how distinguishing can take on different forms and can have different repercussions on the precedent: subsequent distinguishing can leave the precedent intact, can modify it, or can even implicitly overrule the precedent.
Jacob convincingly argues that the striving for coherence or the pretense of coherence alone cannot justify the problematic and non-transparent approach of the court. The exploration of possible grounds for departing from a precedent is also very insightful.
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Drawing upon jurisprudence of the Supreme Courts of the United States and the United Kingdom, the author distinguishes different reasons for overruling and analyzes their operation in practice. Most interesting from a theoretical per spective is the chapter on the normativity of CJEU precedents. Jacob rightly refuses to deduce far-reaching consequences from the juxtaposition of common law versus civil law thinking. Without denying the differences between the two archetypes, he subscribes to a modest version of the convergence thesis, pointing out that legal practice in both systems reflects a normative understanding of the effects of precedent: precedents entail at least an argumentative burden that prevents courts from ignoring or departing from established case law without any substantive reasoning.
Jacob also rightly refuses to limit the normativity of law to the concept of binding effect.
Focusing on the lack of binding effect or on the absence of any strong doctrine of stare decisis in EU law simply misses the point. Drawing from domestic legal systems as well as from the use of precedent in international law, Jacob unfolds his thesis on the basis of a detailed and thorough analysis of the understanding of precedent in EU law as it is reflected in the jurisprudence of the CJEU and in the opinions of the advocates-general.
While there is no binding precedent in EU law, precedents nonetheless entail a normative effect. The question of whether and how other actors of EU law—in particular the political organs of the EU, domestic courts, or the member states—are obliged to take the precedents of the CJEU into consideration when applying EU law, is treated only marginally, and again only from the perspective of the CJEU, in particular with regard to the jurisprudence of the Court in the CILFIT case.
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A comprehensive picture of the working of precedent in EU law would therefore require an analysis not only of how the CJEU deals with its case law, but also of the way in which the courts of the member states approach the law made in Luxembourg. All together, Jacob presents a differentiated and multifaceted picture of the way in which the European Court approaches the question of precedent. Referring to, distinguishing, and overruling precedent are depicted as diverse and multifunctional techniques of legal reasoning.
The study impressively shows that precedent is a normative phenomenon, the full extent of which cannot be grasped by premature and overly simplistic references to the differences between common law and civil law traditions, to stare decisis and the non-binding character of precedents, or to the distinction between law-making and legal interpretation.
Moreover, the functioning of precedent is much more determined by the specific institutional and political context in which a court operates than by the scarce pronunciations of positive law on the matter. The book skillfully combines thorough analysis of jurisprudence with differentiated conceptual and theoretical thinking.
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The use of quantitative analysis provides further insights, while the author rightly avoids drawing far-reaching or even normative conclusions from statistics. The book is written in a lively language, although, at times, I found the excessive use of metaphors, figurative language, and even puns rather strenuous and sometimes a hindrance to the clarity of the argument.
In sum, Marc Jacob has written a highly insightful study, which will be of interest for anyone interested in precedent within the context of the European Union and beyond.