Paper's abstract

Pascale Deumier, Law Creation and Drafting of Rulings by the French Cour de CassationLes arrêts de la Cour de cassation sont traditionnellement marqués par leur concision. Souvent justifiée par la fonction de cassation, cette rédaction pourra
The rulings of the French Cour de Cassation are well known for their conciseness. Often justified by the annulment function, this drafting could be less relevant where the law-making power of the judge is concerned. Because this power rests on the task of uniform interpretation of the Cour de Cassation, this yardstick here envisions the drafting of the ruling. Interpreting the general rule in order to adapt it to the case is unavoidable and the law-making power of the judge widely rests on it. The exercise of this power ought to appear in the ruling through the demarcation of the need to interpret due to the circumstances of the case and of the interpretation method used to answer it. In addition, in order to reach uniformity, the ruling must favour a cautious support to the chosen interpretation. The play of this de facto authority implies that the meaning and full range of the legal proposition are entirely understood. The knowledge of various elements usually lacking in the rulings (precedents, dissenting opinions, authorities, social and economic data) might shed light on this meaning and range and one may ask, for each of these elements, if it is more convenient to include them in the text of the order, to reveal them in their context, or to keep them to the secrecy of the deliberation. These various propositions vary according to the ruling: the canons of drafting can never be identical for doctrine bearing rulings and other rulings, for interpretations intended to apply the rule to the case and for interpretations intended to control the compliance of one rule to another.

Key Words : Cassation, drafting, ruling, interpretation
t. 50, 2007 : p. 49-75

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