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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 Jakubecki: A Precedent as a Doctrinal and Jurisdictional Category of Civil Law

A Precedent as a Doctrinal and Jurisdictional Category of Civil Law

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Andrzej Jakubecki

Abstract: The concept of a precedent in the Polish civil law science is most frequently analysed from the perspective of sources of the civil law. The topic of interest is whether judicial decisions and, formerly, also decisions of the State Economic Arbitration can be considered the source of civil law standards. The position of the contemporary Polish civil law science regarding the legislative role of judicial decisions and the judicial precedent are summed up well in the statement that, in the Polish legal system, decisions made by courts, including the highest courts, are not officially binding for lower courts. As for the judicature’s approach to this issue, it is common to negate the thesis that precedent decisions create commonly applicable legal principles. However, that approach does not mean that the doctrine and the court decisions do not appreciate or diminish the importance of the activity of courts in the modelling and directing of the interpretation and application of the law. On the contrary, the doctrine highlights the role of the judicature but does not usually place it among sources of the law.

Keywords: civil proceedings, precedent, judicial decision, sources of law

The concept of a precedent in the Polish civil law science is most frequently analysed from the perspective of sources of the civil law1. The topic of interest is whether judicial decisions and, formerly, also decisions of the State Economic Arbitration can be considered the source of civil law standards. If...

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