Les méthodes de la Cour de cassation dans la création du droit : étude à la lumière du droit des obligations

Abstract : Usually, when a debate comes to an end, the question disappears. Now that it’s been resolved, there is no more reason to continue researche. So why is the jurisprudence still at the center of the interest ? The question to know if the judge can produce rules has been resolved. After a century of controversy, the authors seem to agree on an affirmative answer : the judge has a normative power and he can produce rules as the legislator. So then, what are the contemporary works about ? Many words have been spent about the way the judge is acting : his methods have been changing over time. They are becaming more audacious. The question now is to understand how far he can go. Can he break the law ? Create subversive rules ? Can the judge retroactively, inconveniently, and unpredictably overturns rules ? The others jurists may not approve of it. As the judge of Common law, the French judge may not be totally free towards the law, nor towards his own jurisprudence. The current works are trying to reveal all the limits of the praetorian power.
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Delphine Lanzara. Les méthodes de la Cour de cassation dans la création du droit : étude à la lumière du droit des obligations. Droit. Université Nice Sophia Antipolis, 2014. Français. ⟨NNT : 2014NICE0023⟩. ⟨tel-01127147⟩

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