Zbornik Radova Pravnog Fakulteta u Splitu (Jun 2015)
Some considerations of authority of the courts
Abstract
In this paper we mostly deals with authority of the courts from two points of view. Firstly, we deals with authority which courts have in itself, because in their decisions principaly decides about rights and duties of people in dispute (we don’t go in the quality of their decisions). Secondly, we deals with the quality of their decisions, primarly through their use of argument of authority. It is difficult to talk about argument of authority without saying what is the role of judgements in two great legal systems – European-continental system (civil law) /traditionally authority is court practice/ and Anglo-American system (common law) /traditionally authority is precedent/. In European-continental system, lower courts invokes to the decisions of higher courts because of their quality. In Anglo-American system, precedents bind lower courts and they are are formal sources of law. Can we define argument of authority uniqualy for both systems? We are pleading for definition of argument of authority in which argument of authority means invoking to court practice and invoking to precedents, but it doesn’t mean invoking to laws. We think that invoking to law means realisation of the principle of legality. There is difference between invoking to law and invoking to precedents, although this last has the effect of legality. We are showing that some solutions of Croatian lawmaker means exception from the principle of European-continental law in which decisions of higher courts binds lower courts because of their quality, so there are some types of binding decisions of higher courts which have “de facto” effect of precedents.
