Case Law and its Binding Effect in the System of Formal Sources of Law

The author proposes changes to the traditional concept offormal sources of law. This concept originates in the 18thcentury, but it fails in adapting to the development of thelaw, especially in relation to principles of legal certaintyand predictability of legal decisions. The definition of formalsources of law is also vague and unclear and it brings moreproblems than it offers solutions and insight. To replace it,the author offers a new distinction – based on the criterion ofautonomy of the sources of law. To support his arguments, theauthor compares the status of court decisions in common law andcivil law systems but also focuses on the difference betweenindividual countries belonging to the civil law system. Thecomparative criteria are mainly focusing on the nature andstrength of the binding effect of the case law for the lowercourts, but also on institutional aspects within the courthierarchy, e.g. if a judge can be liable in any way forignoring a source of law.