Université de Montréal - Thèse sous forme numérique

176hierarchy of the judiciary system is the same: ―Au sommet de la hiérarchie juridique, lelégislateur énonce le sens du langage du droit, mais c‘est le juge qui en fixe la significationlorsqu‘il est appelé à interpréter le texte litigieux qui lui est soumis par les parties‖ (Gémar1991: 281).Nevertheless, while Portuguese judges work in a civil law system, Canadian judgeswork in a common law system, which results in their roles being different in some respects.Portuguese and Canadian judges enter into dialogue with a number of texts: with theevidence, with the arguments and submissions made by the litigants in court, with thedecision which is being appealed, with statutory law, with similar decisions in the past(precedents) and with their colleagues on the bench who may decide a case differently(Vázquez Orta 2010). Judges also enter into a dialogue with possible future texts, i.e. withjudges and lawyers who will be involved in similar cases in the future (Allard 2001: 77).The dialogue is facilitated by the electronic technologies that legal networks use more andmore.However, Portuguese and Canadian judges adopt distinct methodologies in enteringinto a dialogue with the elements mentioned above, because they use different sources oflaw. Canadian judges not only discuss statutory law (the statutes) and the positions taken bylegal science (books, articles written by academic lawyers, etc), but they also have todiscuss the precedents (stare decisis) that apply to the case at hand as well as the meaningof those precedents (ratio decidendi). In fact, precedents are discussed in a far moreelaborated way in the Canadian judgments than in the Portuguese judgments because theseare mandatory principles in the Canadian common law system but not in the Portuguesecivil system. As precedents are binding on lower courts, Canadian judges are said to be lawmakers or jurislateurs (Devinat 2005: 173):Sur le plan prescriptif, il ressort nettement du discours de la Cour suprême que lerôle des tribunaux est celui d‘adapter la common law aux faits sociaux, ce qui