# O.J. Civil Trial.. Why? **URL:** \ **Category:** Factual Questions\ **Created:** [December 10, 2008, 9:28am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537 "2008-12-10T09:28:21Z")\ **Posts on this page:** 9\ **Page:** 7
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 14, 2008, 5:32pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/121 "2008-12-14T17:32:51Z")
I am not a lawyer and I do not quite understand why stare decisis is really relevant to the right to appeal. I see it as to different and separate things but, in any case, I would think stare decisis as a general principle applies also in civil code countries. > [@](#): > > [Precedent - Wikipedia](http://en.wikipedia.org/wiki/Stare_decisis) > > The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a higher court is binding precedent (also known as mandatory authority) which a lower court cannot overturn. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle, regarding persuasive precedent, is an advisory one which courts can and do occasionally ignore. I am pretty sure French lower courts are bound by precedent set by higher courts and, if not as an obligation at least as a persuasive argument and precedent, by courts of the same level. ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 7:20pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/122 "2008-12-14T19:20:13Z")
> [@Northern\_Piper](#): > > I’ll have to read that article in detail, but the reference to a pourvoi en cassation helps me to understand the issue, I think. I came to mostly the same conclusions you did (reform thought to be necessary because the review by the “Cour de Cassation” was more limited in scope than in the Anglo-saxon system), but mostly based on the fact than a British appeal court, for instance, can, according to your cite : “allow an appeal against conviction if they think— […] that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory” . The “Cour de Cassation” definitely can’t do that, regardless how unsafe, unsatisfactory or even absurd the verdict was (barring new informations like evidences not known to the court at the time of the verdict, and even then, the court is famously _extremely_ reluctant to annul a verdict on this basis). Another important element, in my opinion, that you don’t mention but was mentionned in the article linked to be \*\* Hello again \*\* was the very strict trial procedure in the Anglo-saxon system, like for instance the rules about admission of evidence, hearsay, etc…, unexisting in the Civil Law system, due to the inquisitory written procedure. As a result, a British/American/whatever appeal court would have much more leeway to accept an appeal on the basis of minute procedural elements, for instance related to a specific testimony. However, like \*\* Sailor \*\*, I’m not so sure about the importance of the principle of “Stare decisis”. First because the “Cour de Cassation”, at the very least, could keep on annuling the verdicts of the successive lower courts involved in the case, if they insisted, for instance, on interpreting the law “the wrong way”. But fact is, they wouldn’t do that. Actually, this also is an issue I frequently wondered about reading this board. I never clearly understood what was the difference, from this point of view between the two legal sytems. From my readings, everybody seems to agree that the difference is very significant, but it isn’t really obvious to me. French courts can be held by the decisions of higher courts, and precedents certainly are important enough for law students to have to memorize tons of them. And on the other hand, an Anglo-saxon court isn’t bound by precedents till the end of times. And it seems to me that \*\* Sailor \*\* quote might answer this long-standing question of mine > [@wikipedia](#): > > The first is the rule that a decision made by a higher court is binding precedent (also known as mandatory authority) which a lower court cannot overturn. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts Now, I must ask : are these statements correct? Is it true that a lower _cannot overturn_ the decision of a higher court? In which case, I could understand the difference because a French lower court will occasionnally, though rarely, ignore a precedent set by a higher court. The case will then generally (but not necessarily) end up again on the lap of the higher court that will confirm or overturn the precedent. This would constitute a difference. And an even more important diffference if, as per \*\* Sailor \*\* cite, Anglo-saxons courts are by tradition much more reluctant to overturn their own precedents than French ones. I’m not sure _how_ important a difference it would make, though. In any case, I’m not really convinced it would be an important factor regarding the appeals in criminal cases since anyway, the “Cour de Cassation” would always have the last word, in the unheard of situation where the second “cour d’assises” would just ignore its decision (plus I’m not even sure it really could do that : ignore a decision made about the exact same case. I’ll try to find out). It seems I’m going to get in this thread the answers to many questions I’ve been wondering about. 🙂 ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 14, 2008, 7:25pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/123 "2008-12-14T19:25:44Z")
> [@sailor](#): > > I am pretty sure French lower courts are bound by precedent set by higher courts and, if not as an obligation at least as a persuasive argument and precedent, by courts of the same level. Can you explain why you think that? What is your knowledge of civil law systems? ---
**Author:** ![Hello\_Again](https://avatars.discourse-cdn.com/v4/letter/h/85e7bf/32.png) [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)\ **Post date:** [December 14, 2008, 7:27pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/124 "2008-12-14T19:27:56Z")
> [@clairobscur](#): > > Now, I must ask : are these statements correct? Is it true that a lower _cannot overturn_ the decision of a higher court? Absolutely true. Simply.. impossible. Contrary to the entire system. I can’t say it any more strongly than that. Let me put it this way - legal precedent can never, ever travel “upward” through the system. A trial court cannot state a new state of the law. If they try to, they will just get slapped by the Appeals court, or, perhaps eventually, the Supreme Court. The Supreme Court can say what the law _is_ - the lower courts must carry out that law. At times, Circuit Courts of Appeals (the intermediate level in the U.S. Federal System) may have different interpretations of a Supreme Court statement that seems ambiguous. In such cases, both interpretations cannot be equally valid - the Supreme Court steps in to resolve the “Circuit split.” ---
**Author:** ![sailor](https://avatars.discourse-cdn.com/v4/letter/s/a587f6/32.png) [@sailor](https://boards.straightdope.com/u/sailor)\ **Post date:** [December 14, 2008, 7:48pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/125 "2008-12-14T19:48:03Z")
> [@Hello\_Again](#): > > Can you explain why you think that? What is your knowledge of civil law systems? If I am wrong you are welcome to show it. Am I wrong? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 8:26pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/126 "2008-12-14T20:26:14Z")
> [@Hello\_Again](#): > > Absolutely true. Simply.. impossible. Contrary to the entire system. I can’t say it any more strongly than that. > > Let me put it this way - legal precedent can never, ever travel “upward” through the system. Thanks. That clearly answers my long-standing question. I had many times read here about precedents being overturned and had never ever realized that precedents “don’t travel upward”, as you put it. I assume that’s true for all Anglo-saxon systems (Australia, Canada, etc..)? That’s in theory an important difference with French law, but I’m wondering how much of a difference it makes in practice (since a french court usually follows the precedents set by a higher court) and how important can be this absence of “upward travel”. I suspect one would have to be familiar with both systems to answer. > [@](#): > > the Supreme Court. The Supreme Court can say what the law _is_ - the lower courts must carry out that law. Which is contrary to a fundamental principle in French law : that a court _never_ can say what the law is. Those two principles put together give a lot of power to the supreme court. And given that, as far as I know, the SCOTUS (or its equivalent) isn’t under any obligation to review a particular case, I’m wondering if this is not a problem? Especially since, when I think of it, these judges serve for life. I assume it ensures a high level of…how to put it… “legal stability?”…But doesn’t it give too much power to this court and its judges? And _too much_ stability? Is it considered a concern, or not? And are the British Lords in an equivalent position? ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 8:32pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/127 "2008-12-14T20:32:55Z")
> [@sailor](#): > > If I am wrong you are welcome to show it. Am I wrong? If you think that French lower courts are absolutely bound by precedents set by higher courts in the way it’s explained in this thread for Anglo-saxon courts, yes you’re wrong. They just usually abide by these precedents. A precedent never can be normative (I couldn’t tell if it’s true, let alone to what extent, in other countries using a civil law system). ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [December 14, 2008, 8:41pm UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/128 "2008-12-14T20:41:44Z")
Here the two relevant statutes : > [@French Civil Code](#): > > Art. 5 > Judges are forbidden to decide cases submitted to them by way of general and regulatory provisions. > [@French Civil Code](#): > > Art. 1351 > The force of res judicata takes place only with respect to what was the subject matter of a judgment. It is necessary that the thing claimed be the same; that the claim be based on the same grounds; that the claim be between the same parties and brought by them and against them in the same capacity. ---
**Author:** ![alterego](https://avatars.discourse-cdn.com/v4/letter/a/6bbea6/32.png) [@alterego](https://boards.straightdope.com/u/alterego)\ **Post date:** [December 15, 2008, 2:29am UTC](https://boards.straightdope.com/t/o-j-civil-trial-why/476537/129 "2008-12-15T02:29:00Z")
> [@sailor](#): > > I find this drive-by pretty rude. You are free to find it as rude as you are in the mood to feel. I read enough of the thread to get a variety of opinions, but did folks the courtesy of pointing out that I didn’t read every post. In my opinion you just wanted an excuse to complain. [Previous page](https://boards.straightdope.com/t/o-j-civil-trial-why/476537.md?page=6)