Reconsidering Res Judicata: A Comparative Perspective

Res judicata changes white to black and black to white, it makes the crooked straight and the straight crooked. INTRODUCTION Final judgments create legal barriers to relitigation. These barriers are the rules of res judicata (RJ), which means matter that has been adjudicated. (2) The term res judicata refers to the various ways in which one judgment exercises a binding effect on another. The rules of RJ have undergone a significant change in scope. (3) In the old common its scope was quite narrow. A judgment entered in a case on one form of action did not prevent litigants from pursuing another form of action, although only one recovery was permitted for a single loss. (4) With changes in the rules of litigation as part of the evolution of modern procedure, the scope of the rules of RJ is wider. The basic proposition of RJ, however, has remained the same: a party should not be allowed to relitigate a matter that it has already litigated. (5) As the modern rules of procedure have expanded the scope of the initial opportunity to litigate, they have correspondingly limited subsequent opportunities to litigate a subsequent one. (6) As we shall see, this is the clear tendency in the modern law of RJ. RJ is a classic common law doctrine that applies in the legal systems of both England (7) and the United States. (8) Some commentators are of the opinion that the doctrine is a necessary product of the adversary system of litigation practised in English Courts, (9) or, as stated by some U.S. legal scholars, [o]ur legal system could not exist without [RJ]. (10) The doctrine of RJ is also a cornerstone of the Canadian legal system. (11) Many legal scholars believe that every legal system has produced a body of [RJ] law, (12) and some scholars have made unequivocal statements to that effect. For instance, one legalist asserts that [t]he doctrine of [RJ] is a principle of universal jurisprudence forming part of the legal systems of all civilized nations. (13) Another legalist writes [it] may be assumed that the need for finality of judgment is recognized by many, if not by all, systems of (14) A third writes that [i]t seems clear that the adjudicative process would fail to serve its social and economic functions if it did not have [the support of RJ]. (15) In this Article I challenge these assumptions and show that some well known legal systems do not accept the main tenets of RJ. Furthermore, I demonstrate that these systems may reject RJ for good reasons: the rules of RJ raise many difficulties and have many drawbacks (16)--moral, conceptual, social, and economic--and create problematic incentives for litigating parties. Indeed, these difficulties and drawbacks do not necessarily lead to a full abandonment of the concept of R J, for arguments support at least a minimal concept of RJ. Nevertheless, this Article presents arguments that should prompt us at least to reconsider the contemporary broad-scope common law model of RJ. Martin Shapiro claims that a chief purpose of comparative law should be to provide data for testing general theories about law. (17) Indeed, examination of legal history reveals that the principle of finality did not always apply to cases, and parties could reopen a case in some legal systems. For example, in the procedural systems employed in Jewish rabbinical courtst8 a unique concept of non-finality of judgments prevails. (19) This existed both in ancient Talmudic and post-Talmudic and still exists in present-day rabbinical courts in the State of Israel. Comparative law truly holds exciting potential to help us better understand law and legal systems, because it offers, as argued by John C. Reitz, at least two significant intellectual benefits that are not easily obtained outside the comparative method: (1) the tendency to push analytic categories to higher levels of abstraction in order to bridge differences between legal systems, and (2) the tendency to force the researcher to expand the analysis to include the whole legal system and its relationship with the rest of human culture and its material and spiritual context in order to understand the differences and similarities observed. …

Récupéré en direct depuis OpenAlex et désinversé. Les résumés ne sont pas conservés dans cette base de données : les index inversés représentent 8,6 Go des 9,3 Go de texte de la base, et le serveur dispose de 13 Go libres.