Paper's abstract

Guy Canivet, Judicial Activism and Interpretative Caution, Foreword
In its ambiguity as a source of law, the concept of case law is precisely intended to reduce the tension that exists, in any system of law, between the function of law making and that of judging. Various and debatable ad infinitum, the arguments of interpretative prudence opposed to judicial activism do not make it possible to put definitively an end to the debate on the capacity of the judge to create law. The judge’s powers in this regard vary through the ages, according to the subject matters, the time the statutes were passed, the roles of the Court, the techniques of interpretation, the circumstances and the legal systems. The work of the judge is very inspired by realism. Far from being opposed in a sterile and dogmatic conflict, the legislator and the judge have actually a complementary role in the permanence and the continuity of law that naturally — and democratically — leaves the last word to the former.

Key Words : Source of law, caselaw, activism
t. 50, 2007 : p. 7-29

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