Prawoznawstwo Research Papers - Academia.edu (original) (raw)

A book monograph entitled: Anglosaska doktryna precedensu. Porównanie z polską praktyka orzeczniczą (the Anglo-Saxon Doctrine of Precedent : a Comparison to the Polish Judicial Practice) elucidates pivotal questions respecting judicial precedents in the United States and United Kingdom. Thus, apart from a concise outline of the structure of British and American judicature, there have been presented: the history of the development of the Anglo-Saxon doctrine of binding judicial precedent; reasons that are commonly adduced for and against having such a doctrine; the standard elements of a legal decision delivered in the common law legal system; issues connected with the publication of and public access to such decisions; the vertical and horizontal aspect of the operation of the principle of stare decisis, i.e. the exposition of which court is according to this principle bound by a precedent of which court (including the intricacies that stem from the existence of state and federal judicature in the USA and from the division of into three distinct jurisdictions as well as in the UK).
Moreover, in this monograph, there have been depicted theoretically possible models and theories of the constraint by judicial precedent such as the rule model, model based on weighting countervailing arguments (pros and cons), particular analogical model, result model, principle-oriented model, precedent as reasons or reasoning or Dworkin’s conception of a remarkably skillful judge: Hercules, not passing over the so-called Dr. Goodhart’s method. Additionally, a vast array of specific for the Anglo-Saxon doctrine of precedent notions and institutions have been discussed and presented, including: a case of first impression, the idea of overruling and distinguishing precedents, distinction between obiter dicta and ratio decidendi or instances of rendering a precedent per incuriam and sub silentio. The allowance has been also made for factors which in practice influence, strengthen or diminish, the force of a given precedent as well for the relation in which precedential law stands to statutory one, having also regard for judicial review both in the USA and UK.
Against the above-mentioned background, subtle terminological distinctions and concepts (e.g. a leading case, super precedent, obiter dicta versus dicta, prospective and anticipating overruling) together with differences between rules governing the use of precedents in the UK and the USA have been grasped and highlighted. By that way, for instance, the reader is provided with the peculiarities of the bindingness of England and Wales Court of Appeal by its own precedents, including the three main exceptions from such obligation as well as the general relaxation of this obligation in criminal case when personal liberty is at stake, or with the ban on citation of unpublished judicial decisions and ethical duty of legal counselors to cite precedents that are not in favour for their clients but applicable in the case they defend.
The second part of the book comprises the brief comparison of the Anglo-Saxon approach to previously rendered judicial decisions to its Polish and continental counterparts. For the purpose of such comparison the reference has been also made to the precedents and their characteristic features that are established in the UK and USA in statutory and constitutional law. As a result, it has been demonstrated that divisions of judicial precedents that one may encounter in Polish theoretical literature – contrary to the prevailing in this literature stance – are generally not useful for showing how Polish or continental attitude to past judicial decisions differs from the Anglo-Saxon approach. Instead, it has been suggested that these divisions lend themselves to being invoked for highlighting what civil and common law have – in this respect – in common.
In the last part of the book, i.e. Appendix, there have been described the Norwegian, Swedish and the Court of Justice of the European Union’s practices concerning the use of judgments already delivered for adjudicative purposes. These practices serve here as examples in which the operation of the principle of stare decisis or some other basic inventions of the Anglo-Saxon doctrine of precedent can be – more or less expressly – discerned.