Towards a Sophisticated Theory of Precedent? Prospective and Retrospective Overruling in the Czech Legal System

Abstract

The Czech legal system is the example of the country in transition from the communist authoritarian system of the 1980s into a new democracy. The issue of precedent (or case law) is a good example of this. In discussing the role of case law, the era of the 1990s was full of debates about the actual importance of judge-made law in a newly emerging legal system. Many lawyers in the 1990s or early 2000s rejected any value which precedents might have in a civil law system. In contrast, the second decade of the twenty-first century is facing a completely different scenario. Now one can hardly find a Czech scholar who would continue to claim that case law has no law making function and no force. Instead, new problems emerged, including temporal application of new precedents. With the beginning of the second decade of the twenty-first century the issue of prospective effects of precedents started to be analyzed. First, this debate took place in judicial decisions, then legal doctrine followed. The case law and legal scholarship try to outline several basic models of temporal effects of case law. The actual model depends on the area of law and parties involved.