Nataliia Skidan

Yaroslav Mudryi National Law University and University of Liege 

CV: Nataliia Skidan is a PhD Student at the Yaroslav Mudryi National Law University (Kharkiv, Ukraine) and Visiting researcher at the Faculty of Law, Political Science and Criminology at University of Liege (Liege, Belgium). Since April 2022, Nataliia has been a trainee at the University of Liege. In September 2021, Nataliia began her postgraduate studies at the Yaroslav Mudryi National Law University. Approved thesis topic is ‘Case law in the system of sources of criminal procedural law in Ukraine’. In February 2021, Nataliia received a Master’s Degree at the Yaroslav Mudryi National Law University. In June 2019, Nataliia received a Bachelor’s Degree at the Yaroslav Mudryi National Law University. She is studying law, that’s why her interests include criminal procedure law, human rights, case law and its unity. Her mission is to assist in the promotion, exercise and protection of human rights, particularly during criminal investigations. She participated in conferences and webinars where she also presented her theses and papers.

Presentation title: Case law as a source of law in the field of criminal procedure in Romano-Germanic legal tradition

Abstract: An intrinsic feature of any field of law is the hierarchical system of its sources. The particularities of the regulation of legal relations in each law sphere are determined by the elements of such a system (i.e. the sources of law in themselves). In Anglo-Saxon legal systems, case law is a recognized source of law, which occupies an important place in the entire legal system. However, for legal systems belonging to the Romano-Germanic legal tradition, this issue is not so straightforward. On the contrary, it has always been and still is a subject of discussion among scholars and practitioners, including in the field of criminal procedure.

As a rule, in the field of criminal procedure of Civil Law countries, case law belongs to secondary law sources. However, in fact, judges tend to follow previous judicial decisions. Therefore, one may raise the following, somewhat pleonastic question: Is ‘case law’ really a ‘source of law’?

This question can be further split up in several sub-questions. First, should courts take into account the legal positions contained in previous court decisions? Second, can participants in criminal proceedings refer to such decisions to argue their position? Third, can courts interpret the law or even ‘create’ a new one?

This study will put forward a preliminary methodological approach which could help solve this crucial theoretical and practical problem. The proposed approach is based on philosophy and theory of law, focusing in particular on the philosophical concept of validity by Robert Alexy. Alexy described three concepts of validity: the sociological concept of validity, the ethical concept of validity and the juridical concept of validity. These three concepts of validity correspond to three elements of the concept of law: social efficacy, correctness of content and authoritative issuance.

Considering Alexy explained the concepts of validity through the lens of the validity of norms, this study will first present the general points of each validity concept, as well as some Ukrainian and Belgian examples (both countries whose legal system belong to the family of Civil Law systems). Next, Alexy’s theory will be used to test case law as a phenomenon of legal reality in each of the three dimensions.

Using the method of induction, it can be concluded that if the rules governing the nature of case law are valid, case law is also valid. Also, if case law is valid at each of the three levels, then it is valid as a whole (as a phenomenon). Thus, the case law can be a source of law in Civil Law systems.

This dual validity test supports the thesis that, in legal systems belonging to the Romano-Germanic legal tradition, case law can be a source of law. However, it must still be clarified what is meant by case law as a phenomenon in general and it should be highlighted that each source of law has its own forms. Therefore, the topic of future research could centre in the following question: ‘What forms does case law have as a source of law?’.  Obviously, the answer to this question may be different from country to country, even within the same legal family.