Development of the Law by Supreme Courts in Europe

Abstract

This article is dedicated to the development of the law by the courts,1 and especially by supreme courts2 in Europe, a phenomenon which is also, more ambitiously, described as law-making.3 There are many possible definitions for the term ‘law-making’. In brief, the term can be described as ‘the adoption of a legal rule which up to that time was not yet (clearly) recognised as applicable law’. This definition encompasses both the creation of legal rules by the legislator and the adoption of such rules by the courts. Judicial law-making takes place when courts interpret legislation or rules in treaties, when they apply legal rules by analogy, and when they accept unwritten rules without a statutory basis. I will address various questions regarding law-making by (supreme) courts: To what extent do the courts in fact make and develop law, and is there a statutory basis for this activity (Sections 2 and 3)? Can we observe a tendency towards more law-making by the courts (Section 4)? What instruments and techniques can the courts use for law-making (Section 5)? And what is the influence of international law on this role of the judiciary (Section 6)? Of course there are limits to the power of the courts to develop new rules. What are these limits, how are they established, and what is the relation between court and legislator in this context (Section 7)? And what developments can be expected in the foreseeable future (Section 8)? All (supreme) courts are more or less frequently confronted with these interesting questions, which are therefore well worth discussing.