The judicial precedent - a historical interpretation of positive law?

Abstract

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.