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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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Bartosz Liżewski: Few Remarks about the Precedent Qualification of the ECHR Decision

Few Remarks about the Precedent Qualification of the ECHR Decision

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Bartosz Liżewski

Abstract: The article is a theoretical reflection on the possibility of classifying a judgment of the European Court of Human Rights (ECHR) as a precedent judgment. It is about understanding of the “precedent” term that has been shaped in the continental legal culture. Theoretical considerations on the precedent character of judgments of the Strasbourg Court are justified by their legal character. On a normative level, these judgments create standards, which determine the way of understanding human rights. It can therefore be concluded that the Court has the power to “create” norms (or the way to understand the norms), because it is not possible to understand human rights without those standards. The binding force of ECHR judgements covers two spheres. The first is the binding force of the judgments of the Court for subsequent judgments of this court in similar causes. The second area is the binding force of the Court’s judgments for national courts.

Keywords: precedent, continental legal culture, binding force of judgment, source of law

The basis for these deliberations consists of the thesis that the decision of the European Court of Human Rights (ECHR or the Court) does not create a precedent in the sense given to that term in common law. However, such a distinction is assigned to ECHR decisions, doubtlessly, in the sense given to the term “precedent” in the culture of continental law. When we read about the precedent-creating potential of decisions made by international courts...

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