Case Law and Collective Construction of Meaning

Case law has been described as a type of discursive space within which many conversations occur. In law, these dynamic conversations are essential in constructing and re-constructing the meanings of legal concepts and phenomena. Therefore, case law may be understood not only as a space of collective construction of legal concepts and phenomena, but also as a means of this construction. As there is no fixed agreement on the exact concept of case law, that is the meaning and role of case law, in most continental jurisdictions, the courts themselves join these conversations, hence engaging in a process of case law collectively constructing itself.

This paper argues that this construction is essentially collective (social) and takes place across three dimensions: the overt opinions on the role of case law as expressed in the case law itself; the implied opinions included in the presence (or the absence) of references to past case law; and the fact that the judges even recognize case law as a space that allows them to express these overt opinions or that allows them to refer (or not to refer) to past case law at all. The aim of this article is to offer a way of bringing together the loose strands of theoretical knowledge on meaning-making that meet within the concept of case law in a circular manner: case law is at the same time the space, the means as well as the result of specific processes of social construction, and thus to pave the way for further study.