Kontinentální a angloamerický precedent na prahu 21. století

Author examines the role of precedent in the world legal cultures, common law and civil law. The article particularly deals with civil law. Although basic ideological premise of common law is the formal binding farce of precedent (principle stare decisis) and the basic ideological principle of civil law the rule that postulates precedent without binding farce (often perceived as its normative irrelevancy), in fact the real approaches of those both cultures are situated closer than one could see at first sight. The basic reason is the fact that the bindingness is not necessarily described in its strictly formal nature, but it is also possible to recognize weaker forms of binding farce; particularly the normative farce, when in spite of not being formally binding, precedent influences the judge in a normative way. In this sense, the judge can decide contrary to precedent, however she has to avoid arbitrariness. Therefore, the judge has to use the complex reasoning and justification why she did not follow the precedent. The author tries to explain rationales that lead to prima facie different approaches toward precedent in both world legal cultures. Common law is built on precedents, thus formal bindingness is conditio sine qua non of the legal system. In contrast, far prevailing way of thinking of the civil lawyer is deduction from the statute. The civil law judge theoretically attempts to find the answer she needs even in the situation when the statutes does not answer anything at all. Further, while common law supreme courts traditionally function on the principle a certiorari, i.e. the possibility to choose the cases that are going to be reviewed (their main function is, therefore, creation of new body of law, precedents), the civil law supreme courts usually function retrospectively – their primary role is the correction of the errors of the lower courts within the judicial system and their precedential (prospective) function is far more by-product of this activity. The article compares the opinions of many courts of various nations on the role of their precedents and the possibility to overrule their precedents. Author views some traditional notions and misconceptions of civil law as a rigid obstacle on the journey of the civil law countries toward the better conception of justice and judiciary. Therefore, the civil law culture has to create a new and rational conception of precedent, the conception that is not deformed by the traditional and erroneous ideology of civil law system. The conception should require the explicit overruling and distinguishing of precedent, thereby it should prohibit a silent overruling that traditionally prevails in civil law. The silent overruling is potential element of chaos within the judicial system. The decisions of the Czech Constitutional Court which view the precedent of the supreme court rationally and require persuasive justification in order to overrule precedent, are the first step towards this new conception.