PREČO ZOTRVAŤ PRI ROZHODNUTOM? (KRITIKA DICHOTOMICKÉHO MYSLENIA)
Why stick to decided? (Critique of dichotomical thinking)
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Although modern theory of law insists that civil-law courts are not obliged to follow their previous judgements (A), it does not imply automatically that these judgements may be entirely ignored (nonA). Absence of general obligation does not mean total practical irrelevance. Influence of caselaw on the Continent is classified by different set of expressions: although case-law is not „binding“, it can still be „significant“; it does not have formal „normative“ force, but it has substantive „argumentative“ force, it cannot „oblige“, but it can „persuade“… Even if the case-law is not binding, it does not mean that there are no practical reasons why to apply it. And at the same time: even if the case-law is regularly followed, it does not come from its „bindingness“ but from its „significance“. Initial dichotomy „binding/not binding“ (A/nonA) has switched to dichotomy „binding/significant“ (A/B). Although there is change in the meaning of one of the alternatives (nonA became B), it is not accompanied with the change of logical relation which was between the alternatives in their initial state (excluding disjunction). Main aim of the present paper is to show that modern doctrinal reflection of practical effects of the case-law in common-law and civil-law countries is distorting. The main argument in favour of this proposition consists in description, analysis and critique of the way in which genus-species dichotomical definitions are usually advanced. The author of the paper is inclined to believe that accurate description of practical effects of the case-law can be achieved by the complex factor analysis and not by dichotomical classifications.
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