Praktyka precedensowa w porządku prawa stanowionego. Podstawowe czynniki warunkujące

In: Przegląd Prawa i Administracji, Band 110, S. 159-175

Abstract

PRECEDENTIAL PRACTICE IN THE STATUTORY LEGAL ORDER.BASIC DETERMINING FACTORSThe purpose of the paper deals with the consideration of the several basic factors determining the development of the precedential practice in the statutory legal order. Such practice might be defined at the using the previous judicial decisions in the actual decisional process in the validation or derivative aspects of the operational interpretation of law, with potential adaptation of some so­lutions from the common law order. Among the favorable factors for the shaping of this practice one might find the maturity and the positive attitude of the judiciary, features of the specific decision-making process, the attitude of the legal doctrine, social acceptance of the active role of the judiciary bringing potentially ethical correction to the legislative regulations, the technical and informational skill in identification of the needed decisions, the reliable evaluation of the candidate for the position of judge, as well as the functioning of the principles of division of powers, rule of law and independence of judiciary, being elements of the democratic political system. On the contrary, the autocratic political system keeps the position of the strongest counter­-favorable factor to the precedential practice. One of the reasons deals with lack of the control of such practice from the center of political power, what brings the instruments that through the de­gradation of the above mentioned principles of democratic system, restrict the precedential judicial practice.