The STUDIA UNIVERSITATIS BABEŞ-BOLYAI issue article summary

The summary of the selected article appears at the bottom of the page. In order to get back to the contents of the issue this article belongs to you have to access the link from the title. In order to see all the articles of the archive which have as author/co-author one of the authors mentioned below, you have to access the link from the author's name.

 
       
         
    STUDIA IURISPRUDENTIA - Issue no. 1 / 2015  
         
  Article:   THE JUDICIAL PRECEDENT – A HISTORICAL INTERPRETATION OF POSITIVE LAW? / PRECEDENTUL JUDICIAR – O INTERPRETARE ISTORICĂ A DREPTULUI POZITIV?.

Authors:  .
 
       
         
  Abstract:  The judicial precedent – a historical interpretation of positive law? Nowadays, the positive law allows us to rightfully address the question in the title. This is possible because the new codes of civil and criminal procedure have supported a legal institution whose final objective is to issue the judicial order. Its effects extend beyond the legal limitations of the litigation where it was pronounced.We would like to underline the fact that it is necessary to reassess the importance of the judicial precedent. Even if the legal effects of the official source of law cannot be generalized, the decision pronounced by Înalta Curte de Casaţie şi Justiţie is a continuation of the civil law. This official source develops and examines the legal provision. It also becomes mandatory for all the trial courts which face the same legal problem.We pursue the questioning of the judicial precedent’s statute as a formal source of law, which was briefly analyzed by the Romanian law scholars. Unquestionably, we do not claim the authority nor the intention to hold forth inflexible theoretical solutions, similar to the legal force of the judicial precedent from Common-law system. Although, in this respect, it is required to recalibrate the formal sources of Romanian positive law theory, and a starting point might consist in the repositioning the judicial precedent from the questionable formal law sources category in the one of the unquestionable formal law sources, that this cleavage still exists in the Theory of law.

Keywords: judicial precedent, legal interpretation, source of law, legal effects, positive law.
 
         
     
         
         
      Back to previous page