Université de Montréal - Thèse sous forme numérique

177semble impliquer qu‘ils doivent tenir une fonction qui s‘apparente à celle dulégislateur, sans toutefois se substituer à celui-ci.In the Portuguese system, there is no theory of stare decisis or of ratio decidendi assuch despite its application in practice. The formal sources of law on which grounds ofjudgment are based are statutory law (the statutes) and the positions taken by legal science(books, articles written by academic lawyers, etc). Portuguese judges can be said to be labouche de la loi, although their active and normative role is being more and morerecognized and encouraged (Castanheira Neves 2008).As Canadian judges necessarily have to take into account one extra formal source oflaw than Portuguese judges (i.e. case law) to reach a decision, Canadian texts are twice aslong as Portuguese texts. This explains why, in average, Canadian judgments have 12,000words while Portuguese judgments only have 6,500.4.1.4.4. MacrostructureThe structure of the Portuguese and Canadian judgments is closely related to thecommunicative function of the genre. Descriptive and thematic elements are organized insuch a way that allows the institutional goals and the informational needs of the text usersto be met. Portuguese and Canadian texts share a comparable but not exactly identicalmacrostructure because socio-cultural constraints affect the essential move-structure of thelegal genre of which they are instantiations. STJ judgments have only three thematic parts:relatório, fundamentos and decisão, whereas SCC judgments have five: Introduction, Facts,Issues, Analysis, and Conclusion. However, the comparative analysis reveals that theIntroduction part of the SCC judgments is comparable to the Summary section of thePortuguese judgments and the Facts and Issues are conflated in the fundamentos.