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Potential of Precedent in the Statutory Legal Order

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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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Andrzej Korybski: Analogy as a Basis of Precedential Reasoning

Analogy as a Basis of Precedential Reasoning

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Andrzej Korybski

Abstract: In Anglo-Saxon legal literature, the problem of logical basis of precedential reasoning is treated as one of the key research issues. Divergent concepts are put forward. The first of them states that analogy is the basis of precedential reasoning. Another one is based on the assumption that a similar reasoning and precedential reasoning are separate and are based on different assumptions. These concepts are analysed and discussed in the article. Logical characteristics of each reasoning and cultural roots are taken into account. Attention is paid to the fundamental convergence of functions of the compared legal reasonings, and at the same time to the differences in argumentation per analogiam legis and precedential reasoning based on the assumption of binding force of precedent. There are also formulated conclusions concerning the limitations and conditions concerning the possible use of the Anglo-Saxon theory of precedent to the statutory legal orders.

Keywords: analogy, analogia legis, precedential reasoning

The development of the European Union’s legal order is to a large extent based on specific and precedential rulings of the Court of Justice of the EU. It also gives the European legal doctrine the task to consider at least a partial use of the Anglo-Saxon construct of precedent in the legal orders of Continental countries. Analyses undertaken by the literature on the subject focus predominantly on defining the meaning of precedent and per rationem decidendi reasoning as well as showing some possible ways of applying this type of...

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