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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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Leszek Leszczyński: Potential of the Precedential Practice in the Statutory Legal Order. From Conditions to Prospects

Potential of the Precedential Practice in the Statutory Legal Order. From Conditions to Prospects

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Leszek Leszczyński

Abstract: The study analyzes the potential of using earlier court decisions as precedents in the statutory law order in the context of dependence on several starting factors. Some of them have a social and political character, while others are related to the legal discourse in the dimension of the content of constitutional principles and attitudes of the legislature as well as the components of a specific process of law application (such as the similarity of facts or legal matters, the possibility of distinguishing the ratio decidendi, etc.). They may create an important role of precedents in the decision-making process, if the precedent reasoning is correctly shown in the justification of the decision. The precedential practice, by combining the value of flexibility with the value of uniformity and certainty in the judicial application of law, means autonomously shaped by the courts’ reference to the argument of “wisdom from the past” in the statutory law order.

Keywords: conditions of using of precedents, role of the justification of decision, axiology of application of law

Analyzing the potential of the precedential practice (employing previous judicial decisions) in the statutory legal order, one should take into account factors that determine such practice, bearing in mind the grounds for adopting here certain features of the common law system1.

There are basically two areas covered by the conditions for the use of previous legal decisions in court proceedings in the statutory law system. One area covers...

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