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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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Adam Szot: Precedential Argumentation in the Application of Public Law in a Civil Law Culture

Precedential Argumentation in the Application of Public Law in a Civil Law Culture

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Adam Szot

Abstract: The subject of this paper is the issue of reaching in the process of applying public law to “precedents” in civil law countries. The precedent-based argumentation is the use of arguments expressed in earlier legal decisions in the reasoning of the entity applying the law. The aim of the conducted analyzes is to present the presence of said arguments – the frequency and schematicity of calling an argument from the precedent in the application of law in the civil law culture and showing the manner in which the entities applying the law reach for such arguments.

Keywords: precedential argumentation, public law application, civil law culture

In the contemporary state of law, it is unacceptable to pass law enforcement acts which regulate the rights and obligations of their target and which are not established in the sources of law acknowledged in the given legal order. In countries rooted in the civil law culture, this primarily means that the acts are founded on the legal provisions in force. At the same time, upon a general observation of the decisional practice of entities which make particular legal decisions, it is possible to formulate a hypothesis that such decisions are often grounded on precedents, despite the lack of similar principles to the common law culture, whereby precedents are used as binding sources of law. This does not mean, however, that such decisions are taken without any legal basis or in breach of law. It is the...

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