Potential of Precedent in the Statutory Legal Order

by Leszek Leszczyński (Volume editor) Bartosz Liżewski (Volume editor) Adam Szot (Volume editor)
©2019 Edited Collection 198 Pages
Series: Ius, Lex et Res Publica, Volume 12


This book is devoted to various aspects of the potential of precedent as a legal category and the precedential practice as an element of the law in statutory legal orders. It presents a complex approach to the problems involved in precedential practice, including its theoretical consideration and generalization of the practical use of prior judicial decisions as precedents (based on the observation of Polish and European judicial practice) as well as comparative and prospective remarks dealing with the role of precedents in the statutory law order.

Table Of Contents

  • Cover
  • Title Page
  • Copyright
  • About the author
  • About the book
  • Citability of the eBook
  • Contents
  • Introduction
  • Part One: A Point of Theory
  • Leszek Leszczyński: Precedent as an Argument of Judicial Interpretation
  • Andrzej Korybski: Analogy as a Basis of Precedential Reasoning
  • Part Two: Judicial Practice
  • Ewa Skrzydło-Tefelska: The Precedent in Jurisprudence of the Court of Justice of the European Union (CJEU) – Selected Judgments on Trademarks
  • Bartosz Liżewski: Few Remarks about the Precedent Qualification of the ECHR Decision
  • Marzena Myślińska: Precedent-Setting Argumentation in the Rulings of the Polish Constitutional Tribunal
  • Adam Szot: Precedential Argumentation in the Application of Public Law in a Civil Law Culture
  • Paweł Sadowski: Judicial Judgment as a Decision-Making Determinant of the Second Instance Administration Bodies
  • Andrzej Jakubecki: A Precedent as a Doctrinal and Jurisdictional Category of Civil Law
  • Ireneusz Nowikowski: The Problem of Precedents in the Criminal Judgements of the Polish Supreme Court
  • Part Three: Comparisons and Optimizations
  • John McClellan Marshall: The Utility of Stare Decisis in American Common Law Jurisprudence
  • Leszek Leszczyński: Precedent in the Polish Jurisprudence (General Outline)
  • Iwona Rzucidło-Grochowska: The Style of Judicial Opinion and the “Precedential” Potential of the Judicial Decision
  • Aleksander Jakubowski: Precedent Argumentation and Settled Case Law Argumentation in the Context of Technological Development of Artificial Intelligence1
  • Leszek Leszczyński: Potential of the Precedential Practice in the Statutory Legal Order. From Conditions to Prospects
  • Authors affiliation

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1. This book contains works on the current role and potential of precedential practice in statutory law systems. The majority of these articles are based on relevant European studies and on Polish judicial decisions. Specific features of common law systems are treated as a point of comparative or adaptive reference both with respect to the very ‘act’ of resorting to prior judicial decisions and to granting the same possible features of precedential practice. What binds the works presented in this volume is a strong conviction that the potential of precedential practice in judicial decisions taken in statutory law countries shows an ever-increasing trend which manifests itself in various branches of the law and on different decision-making levels.

The role and the potential of this practice is shown from various points of view, expressed in three parts.

Part One focuses on the aspects that fall within the terms of reference of the theory of law. In addition to discussing the grounds for and manners of implementing prior judicial decisions in court cases at hand, attempts are made at determining the role of prior decisions in making interpretations by way of validation arguments and the ratio decidendi reconstruction as well at determining their role in establishing normative grounds for current decision-making processes. Special attention is given to a comprehensive comparison of the ratio decidendi and per analogiam reasoning.

Part Two comprises analyses of ways in which prior decisions are implemented and referred in justifications to judgments by the European Court of Justice, in the application of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the European Court of Human Rights. Relevant analyses are also made with respect to the Polish judicial decisions regarding the constitutional, administrative, civil, and criminal laws.

Part Three focuses, largely on a comparative basis, on determining the potential of the precedent in judicial practice of statutory law systems. The application of the stare decisis as used in the American judicial practice is considered with a view to determining the potential of the precedent in the light of precedent-based argumentation and the characteristic features of the decision-making process and justification of judgments in the statutory law systems.

2. The authors of the studies presented in this volume adopt a classic understanding of the legal precedent. According to the relevant definition, a precedent is “an adjudged case or decision of a court, considered as furnishing an example ←7 | 8→or authority for identical or similar case afterwards arising or a similar question of law (…). A rule of law established for the first time by the court for a particular type of case and thereafter referred to in deciding similar cases (…). A course of conduct once followed which may serve as a guide for future conduct”1 or “decision that functions as a model for later decisions”2 as well as “decision which serves as a guide for present action”3, or, the most generally, as “decision… that has a special legal significance… being regarded as having practical… authority over the content of the law”4.

Irrespective of the above terminological convention, the notion of “a precedent” is replaced in many articles with “another” or “a prior” decision of the application of law, and the term of “precedential practice” is used interchangeably with “the implementation”, “reference to” or “resorting to” another (prior) decision, depending on whether reasoning is discussed or the arguments which justify the decision taken. Given the precise focus of the works presented, which, by nature, triggers repeatability of numerous references, there is a great deal of ellipsis. This is best illustrated in references made to the term “decision” (as in “the implementation of the decision”), which denotes a reference to the content of the decision as well as its justification in order to demonstrate the type of reasoning employed in the decision-making process that leads to issuing a given decision.

Editors: Leszek Leszczyński, Bartosz Liżewski, Adam Szot

1 H.C. Black, Black’s Law Dictionary. Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 7th ed., West Publishing Co, St. Paul 1990, p. 1176.

2 D.N. McCormick, R.S. Summers, Introduction, [in:] Interpreting Precedent. A Comparative Study, eds. eidem, Dartmouth 1997, pp. 1–2.

3 N. Duxbury, The Nature and Authority of Precedent, Cambridge 2008, p. 1.

4 Cf. G. Lamond, Precedent and Analogy in Legal Reasoning, The Stanford Encyclopedia of Philosophy, [online:] http://plato.stanford.edu/entries/legal-reas-prec/ [available: 26.10.2016], pp. 1–2.

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Leszek Leszczyński

Precedent as an Argument of Judicial Interpretation

Abstract: The precedent in the judicial application of law is not an independent but an important interpretation argument for the judicial application of law, first of all in the context of cooperation with legal regulations, which are the basic carriers of law here. In a judicial interpretation, an earlier decision may become a validation argument, which is subject to a separate reconstruction in order to determine the pattern of behaviour contained in a more or less clearly articulated ratio decidendi of such a decision. This pattern participates in the construction of a normative basis for decisions, entering into various relations with legal regulations and legal principles and open (extra-legal) criteria used in a given decision-making process. Thus, it becomes an element of the content of the judicial decision, defining both the qualification of the facts and its normative consequences, as well as the argumentation of the reasons for the decision, which is important for future decision-making processes.

Keywords: judicial interpretation, validation argument, normative base of decision, justification of decision

The use of a prior ruling in the current decision-making process leads to reconstructing (deriving) a model of behaviour contained in this ruling (ratio decidendi), which then enters in different relations and becomes an element of the normative basis of a decision currently made. All these types of reasoning show differences in relation to the measures concerning legal provisions in so far as the text components of the provision, the text of the decision, and its justification1 differ.

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1 Reconstruction of ratio decidendi

1.1 Theoretical Model

(1) Separating ratio decidendi2 from a decision and its justification is based on two assumptions related to some extent to the nature of precedent. The first one relates to the typical understanding of the precedent. Here, it is assumed that the precedent is not the whole decision but its ratio decidendi. Thus, both the possibility and ability to make a distinction between the ratio decidendi and the obiter dicta are necessary conditions of precedent3. Whereas the second assumption means deliberate use of the ratio in ‘one’s own’ decision-making process. A condition of argumentation from precedent is not identification or reconstruction of the ratio but its appropriate application in the current decision-making process4.

(2) The ratio can be determined in two ways, which include some detailed additional variants. The first one involves identifying the ratio with the statement included in the summary of a ruling that is culled out from the text of the reasoning and underlined by the adjudicating panel. It is usually a literal quote of a given passage of the reasoning. The second variant, which is applied in the absence of such an underlined summary, involves a more ‘original’ reconstruction of the ratio from the entire text of the reasoning in as many as three forms, i.e. either from one passage, two or more or even the whole reasoning as the condensed form of the whole text.

In the case of the first method, it is important that underlining the passage be done at the request of the judge-rapporteur as a result of the ‘decision’ of the whole adjudicating panel, not the publisher of the decision. Then it is more likely to reflect the intent of the Court as to marking the most important arguments for a given ruling. Although it does not automatically prompt one to use such argumentation, it definitely goes into this direction. This way means a more faithful ←12 | 13→reference to the solution adopted in the decision that has been applied. At the same time, it potentially introduces some sort of automatism which may limit the activity of the Court to merely citing such a summary in the judicial reasoning of the decision that has been pronounced.


ISBN (Hardcover)
Publication date
2019 (November)
judicial argumentation application of law human rights legal interpretation precedental practice
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019. 198 pp., 1 table

Biographical notes

Leszek Leszczyński (Volume editor) Bartosz Liżewski (Volume editor) Adam Szot (Volume editor)

Leszek Leszczynski is a professor, judge of the Supreme Administrative Court and researcher in the field of legal interpretation, precedent and axiology of judicial application of law. Bartosz Liżewski is a professor and researcher in the field of legal theory and human rights protection systems. Adam Szot holds a Ph.D. in law and conducts research in the field of public administration discretion, application of law and legal interpretation.


Title: Potential of Precedent in the Statutory Legal Order
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