Abstract
In any constitutional system, it is difficult to reconcile the need for legal certainty and constitutional adaptation when there is judicial departure from constitutional precedent. In this paper, We develop a functional comparative approach that explains how constitutional systems maintain legal certainty in the face of constitutional adaptation enabled by judicial departure from constitutional precedents. Using comparative analysis of United States Supreme Court jurisprudence (1954–2023) and French Constitutional Council rulings (1971–2023), We examine how such systems preserve their constitutional stability in spite of judicial change. It is concluded that the departure of courts from constitutional precedent need not mean the disruption of legal certainty but can be achieved via principled judicial reasoning. Where the United States is dependent mainly on explicit overruling under the doctrine of stare decisis, France achieves constitutional adaptation through interpretative evolution. Through the analysis of the two cases, legal certainty is maintained not by the immutability of the precedent but through the coherence and predictability of judicial reasoning, although reliance on the precedent remains a critical limitation.
Recommended Citation
Shatnawi, Faisal Oklah Khattar; Al-Maamari, Abdulwahab Abdullah; Al-Qudah, Yassin Ahmad; Amayreh, Radeyah Ahmad Mohammad; and Hulaiel, Muneer Ali Muhammad
(2026)
"Judicial Departure and Legal Certainty: A Comparative Study of US and French Law,"
Hasanuddin Law Review: Vol. 12:
Iss.
1, Article 4.
DOI: https://doi.org/10.65844/2442-9899.1261
Available at:
https://scholarhub.unhas.ac.id/halrev/vol12/iss1/4
Pages
51-68
DOI
10.65844/2442-9899.1261