Abstract
The article touches upon the issue of precedent (in both the codified law and common law systems) as a source of law. The author presents concepts of the law philosophers, often contradictory to one another, which refer to the understanding of the very term ‘source of law’. The possibility of qualifying judicial rulings, including precedents, as a source of law, is also examined. The author compares the functioning of precedents (quasi-precedents) in legal systems of a number of countries (including the USA, England, Slovakia, Poland, Germany, and Sweden), with special emphasis on Slovakia. It is also emphasised that the rulings of the Constitutional Tribunal of the Slovak Republic have a binding power for courts, provided they are petitioners of the proceedings. The Supreme Court rulings have two kinds of a binding power. The first of them is a cassation power (in a case being the subject of the proceedings), and the second one is a precedential binding power, which is characterised by the lack of obligation of being applied by common courts.
Highlights
M qualifying judicial rulings, including precedents, as a source of law, is examined
The article touches upon the issue of precedent as a source of law
The author presents concepts of the law philosophers, often contradictory to one another, which refer to the understanding of the very term ‘source of law’
Summary
The article touches upon the issue of precedent (in both the codified law and common law systems) as a source of law. M qualifying judicial rulings, including precedents, as a source of law, is examined. A law (or rule of law) made by judicial decisions, exists nowhere in a general or abstract form. Justice Benjamin Cardozo in his The Nature of the Judicial Process is providing us by his understanding of the role of a precedent (in creating legal certainty): “If a group of cases involves the same point, the parties expect the same decision. The judicial decision does not become a source of law in the sense of “binding normative validity”, but it becomes a comparative measure of the later juristic. It applies at least theoretically that non-respecting of a constantly and consistently defended legal opinion of a higher court by a lower court is running the risk that its decision may be overruled/abolished later on
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