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Potential of Precedent in the Statutory Legal Order


Edited By Leszek Leszczyński, Bartosz Liżewski and Adam Szot

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.

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Leszek Leszczyński: Precedent as an Argument of Judicial Interpretation

Precedent as an Argument of Judicial Interpretation


Leszek Leszczyński

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...

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