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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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Marzena Myślińska: Precedent-Setting Argumentation in the Rulings of the Polish Constitutional Tribunal

Precedent-Setting Argumentation in the Rulings of the Polish Constitutional Tribunal

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Marzena Myślińska

Abstract: The subject of this article is the analysis of the scope of use by the Polish Constitutional Court (Constitutional Tribunal) of judicial decision (both own and issued by other courts). The analysis was carried out according to research criteria: the method of their appointment, their role in the process of law interpretation, their use at individual stages of the law application process and the nature of their use in decision-making. The analysis of the research material (case law of the Constitutional Tribunal from three selected periods) allows to draw conclusions concerning the actual role played by the argumentation referring to the contents of earlier individual and concrete decisions in the process of applying the law by the Polish Constitutional Court in the perspective of the legal system of continental law culture.

Keywords: Constitutional Tribunal, precedent, precedent argumentation

Precedent as a term characteristic of the legal culture of common law is defined as a general norm derived from a judgement given for a specific fact, which has binding force (de iure). The essence of the principle of stare decisis, typical of this legal culture, is to issue rulings in similar cases which are the same as earlier decisions for a given factually similar controversy1. Rulings issued in conflict with a general precedent-based norm are considered to be in conflict with the binding law. In principle, such a precedent is binding for the courts of the same or higher instance2. The...

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