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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
ABSTRACT
The so-called precedential effect of a judgment, which means 
that it is binding both on the court that decided the dispute and 
on all the lower courts within a given jurisdiction, is typical of 
the common law courts, since it has historically replaced the 
legislature and provided a certain order and stability in the mass 
of judicial decisions and tribunals at different instances. How-
ever, since the great families of common law and continental 
European law have converged considerably over time, we can 
speak of certain precedential effects also in the case of continen-
tal courts, including in Slovenia. These are still lagging behind 
the normative force of the precedential effects of common law 
judgments, but they are important developments that should be 
taken into account. We are talking about vertical precedential 
effects as well as horizontal ones, which are a particular problem 
in Slovenia.
Keywords: Judicial precedent, common law, civil law, Slovenia, 
vertical precedential effect, horizontal precedential effect, settled 
case law.
Judicial Precedent in Civil Law:  
A Critical Perspective on the 
Slovenian Approach*
Marko Novak**
**
 This article was composed during the three-month period (February-April, 2023) of carrying out 
the Fulbright visiting scholarship program at the Washington University in St. Louis School of law. 
**
 Full professor of jurisprudence and constitutional law. European Faculty of Law, Nova University, 
Slovenia.

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DIGNITAS ■ Civil Law
Sodni precedens v civilnem pravu: kritičen 
pogled na slovenski pristop
POVZETEK
Pomen sodne veje oblasti se kaže tudi v zavezujočem učinku 
sodnih odločb. T. i. precedenčni učinek sodbe, ki pomeni njen 
zavezujoč pomen tako za sodišče, ki je odločilo o sporu, kot za 
vsa nižja sodišča v krogu določene sodne pristojnosti, je tipičen 
za sodišča common law, saj je zgodovinsko nadomeščal zakono-
dajalca in zagotavljal določen red in stabilnost v množici sodnih 
odločb in sodišč na različnih instancah. Ker pa sta se veliki dru-
žini common law in evropskega kontinentalnega prava skozi čez 
precej zbližali, govorimo o določenih precedenčnih učinkih tudi 
v primeru kontinentalnih sodišč, tudi v Sloveniji. Ti za normativno 
močjo precedenčnih učinkov sodb iz common law še vedno zao-
stajajo, vendar gre za pomembne premike, ki jih je treba upošte-
vati. Sicer govorimo o vertikalnih precedenčnih učinkov kot tudi 
horizontalnih, ki so v Sloveniji še poseben problem.
Ključne besede: Sodni precedens – Evropsko kontinentalno 
pravo – pravo common law – Slovenija – vertikalni precedenčni 
učinek – horizontalni precedenčni učinek – ustaljena sodna pra-
ksa.
1. Introduction
One of the traditional differences between the two major le-
gal families of civil law and common law has been their different 
approaches to what is considered a primary legal source. While 
common law has considered “court case law”
1
 as the primary le-
gal source, civil law emphasizes the prime importance of the leg-
islation. The importance of the secondary legal sources, i.e. leg-
islation in the common law world and court case law in the civil 
law, lagged very much behind the primary legal sources. Through 
history that changed, thus today both legal families recognize the 
mentioned two legal sources as very important in their legal sys-
tems. However, differences in what they consider the most im-
1 
Whenever I use the syntax »case law« in this article, I basically mean the case law of courts.

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
portant in their legal systems remain but are much more subtle 
and detailed than before.
2
 Nevertheless, I insist that the emphasis 
on how case law in the civil-law legal family is treated is still less 
sophisticated than in common law, and there are a few places 
where civil law could learn from common-law practices and im-
prove its shortcomings.
3
I do not intend to idealize the common-law approach to case 
law and precedent.
4
 After all, is there a single approach to these is-
sues in common law? I would guess there is not since many (small) 
differences could be found if we only travel from the UK to the 
USA. And, I am sure, there are (dis)advantage concerning case law 
and precedent that need to be addressed when we travel around 
the globe and visit common-law countries and compare them first 
among themselves, to finally compare them with civil law systems. 
In this article, I mainly take ideas for comparison from, but not ex-
clusively, the common law of the United States of America.
What is my intention in this article is to point to certain bad 
practices of dealing with the issue of judicial precedent in Slo-
venia, provide reasons why I consider them bad, compare them 
with better solutions from the common-law environment, and 
suggest certain improvements to the situation in Slovenia. Such 
solutions could either follow from common-law better practices 
or are particularly related to the problems distinct for the civil-law 
systems, for which the common-law approach could not provide 
any solutions.
In the first chapter, I outline the historical background and 
relevance of case law to the European continent. History shows 
us roots to learn about the development of a certain legal insti-
tution.
5
 Then, in the next chapter, I present the modern develop-
2 
Take for example a typical textbook used by first-year law students to learn fundamentals of legal 
methodology. In my Introduction to Legal Theory (Novak, 2021), in the chapter on (formal) legal 
sources, students will start learning general legal acts such as the Constitution and statutes, whereas 
in Ginsburg’s Legal Methods, in a similar chapter on legal sources, they will start the discussion on 
the topic with case law. 
3 
And there might be a case for common-law systems to learn from civilian ones to learn from their 
best practices with respect to statutory drafting (Zweigert, Kötz, 256 et seq.). The impact of the very 
long tradition dating back to the first universities on the European continent, in contradistinction 
with a little bit than two centuries of seriously dealing with statutes is something we cannot neglect. 
However, due to potential complex problems in that regard it is impossible to deal with that issues 
in this article in a lengthy manner. 
4 
For the purpose of this article, whenever I use the word precedent I mean “judicial precedent,” even 
when I use it without the adjective judicial. 
5 
In view of David and Grassmann, legal history is one of the legal disciplines that is the most relevant 
for comparative law (David, Grassmann, 1988).

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DIGNITAS ■ Civil Law
ment of the civilian approach to the judicial precedent, which 
is no longer that far from the common law system than before, 
wherein I discuss two concepts of precedent. After that, I turn to 
discuss the approach to judicial precedent from the view of the 
Republic of Slovenia, a country from within the so-called Cen-
tral European subgroup of civil law. The analysis of Slovenian 
similarities and differences with the common-law perspective is 
presented first through the discussion of the vertical effect of the 
precedent and, second, through discussing the horizontal effect 
of the same. Finally, I conclude with some thoughts summarizing 
the previous presentation as well with some ideas on how to con-
tinue the development of the discussed legal institution.
2.  Historical Heritage of the European 
Continent
It is well-known that, historically, judicial precedent is an es-
sential feature of common law. The doctrine of judicial prec-
edent, with all its important elements (i.e. stare decisis and the 
distinction between rationes decidendi and obiter dicta) is cer-
tainly an invention of English law (Cross, 1991; Garner 2016; 
Black 2010; Gerhardt 2011; Duxbury 2008). It developed gradu-
ally with the increasing importance of royal courts as law-makers 
in many areas of social life. However, it was not until the later 
16
th 
century that past decisions were given weight,
6
 and not until 
the 19
th 
century that the doctrine of stare decisis (along with the 
rationes/dicta distinction) was fully emphasized as a peculiar 
characteristic of English law (Robinson, Fergus, Gordon, 2000). 
That was more or less successfully exported to the U. S. legal 
system by the colonists (Friedman, 1973), which it developed 
further and differently due to the size, complexity, and (federal) 
structure of that system.
Quite the contrary, the civil law countries have traditionally 
not embraced such a strong doctrine of precedent. Quite indica-
tive historical reasons for that are, e.g., connected with pre-revolu-
tionary France, one of the most important countries in the world 
at that time. In the ancien regime the most important courts, 
6 
Evans argued that the idea of stare decisis, although not yet developed as a fully-fledged doctrine, 
had been born together with the first published judicial decisions in the Year Books (1290-1535). He 
believed that “judicial precedents are writing or printing are combined indissolubly” (Evans, 32-33). 

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
royal parlements, were generally considered the exponents of 
royal power, arbitrary, and corrupt (the judicial office could have 
even been bought!). Thus, even the “father” of the separation of 
powers, Montesquieu, who came out first with the idea of three 
separate branches of government (the new (third) one being ju-
dicial), demanded that the judge should only be la bouche de la 
loi (mouthpiece of law) (Montesquieu, 2001). That was his pre-
revolutionary reaction to the non-independent judiciary of his 
time. The historical roots for the present reputation of the judi-
ciary in England (Baker, 2019) and the US (Presser, Zainaldin, 
1989) were certainly very different.
7
 Therefore, this was a very 
important reason why traditionally the European Continent has 
relied on legal acts created first by the executive branch (the em-
peror) and later by the legislature (parliament) (Zweigert, Kötz, 
1998). The judiciary has traditionally not been as independent 
from other branches of government (Zweigert, Kötz, 1998)
8
 than 
that was the case in Britain.
Nevertheless, in the long run a neglect of court case-law be-
came intolerable as it was established that the legislature could 
not imagine every solution to daily problems, thus some creativ-
ity of courts’ interpretation was necessary, and it was deemed 
reasonable that such have equal implications. For that reason, 
the doctrine of jurisprudence constante has developed in France, 
and was also adopted in other civil-law countries(Zweigert, Kötz, 
1998).
9
 However, until the Second World War, they did not em-
phasize the importance of case law (and precedents) beyond that 
of only a secondary legal source, after statutes being the primary 
ones.
10
Especially in the second part of the 20
th
 century, the impor-
tance of judicial precedents and case law only continued its de-
velopment on the European Continent and is today, at least in 
7 
In the 17th century England, there was Coke opposing the King concerning the jurisdiction of 
common law courts. In the pre-US colonies judges in several cases opposed the English authorities. 
Do we know an important judge from the civil-law systems between, e.g., the 17th and 19th century? 
8 
In the Austrian-Hungarian Monarchy at the end of the 19th century, judges were still officially called 
»judicial servants« (Škrubej, 2010). A remnant of the historical dependence of the judiciary on the exe-
cutive branch of power in Germany, is the regulation according to which it is the Minister of Justice 
who is empowered to appoint judges. At some point in history, judges were employees of the Minist-
ry of Justice Zweigert, Kötz, 1998. However, in the present situation, German as well as other civil-law 
judges are as a rule as equally independent as their common-law colleagues, which means that the 
contemporary powers of the Minister of Justice in Germany with respect to judges are merely formal. 
9 
In Germany, it is called ständige Rechtsprechung.
10 
This has been a traditional typical difference between the two legal families (David, Grasmann, 
1988). See also Reimann, Zimmermann, 2019; Orcu 2007; Bussani, Mattei, 2012.

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DIGNITAS ■ Civil Law
some respects, even comparable to judicial case law in common 
law countries.
11
The territory of nowadays Slovenia shared the “destiny” of 
bourgeois Central Europe, in which the judiciary was not fully 
independent particularly from the executive, all the way to World 
War 2, after which the introduction of communism even wors-
ened the situation with regard to judicial independence.
12
 With 
the fall of communism and the independence of Slovenia, the ju-
diciary became formally independent with the 1991 Constitution, 
and after also joining the EU in 2004, the Slovene judiciary has 
been striving to be a respected member of the EU Community 
of judges
13
 by abiding all the requirements of the basic values of 
that association, including judicial independence as a principle 
inseparable with the rule of law. 
3.  Modern Developments: Different Models 
of Judicial Precedents
After the Second World War, with the introduction of modern 
constitutions, constitutional courts, and constitutional democracy 
in general, the situation changed to some extent on the European 
Continent. Moreover, supreme European courts, i.e. the Europe-
an Court of Human Rights and the European Court of Justice 
were established, thus their case law as well as that of national 
constitutional courts have gradually claimed a status comparable 
to binding common-law precedents. Therefore, the importance 
of judicial precedent was spreaded on the Continent top-down, 
from the highest courts with some resistance from lower-court 
judges (Novak, 2003).
Today it is possible to argue that both the major legal families, 
of civil law and common law, embrace the legal institution of judi-
cial precedent (MacCormick, Summers, 1997). A simple definition 
of judicial precedent could be a previous judicial decision that 
serves as a model or pattern to adjudicate future similar cases. It 
11 
See, e.g., Kühn, 2011.
12 
For the persistent problems with regard to the judicial branch in ex-communist countries of the 
former Yugoslavia stemming from the communist ideology (Uzelac, 2010).
13 
EU yearly measures performance of EU judiciary in relation to numerous indicators. See Justice 
Scoreboards of the EU Commission https://commission.europa.eu/strategy-and-policy/policies/jus-
tice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_en. For a critical view on the 
shape of Slovene judiciary, see Avbelj, Letnar Černič, 2020.

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
surpasses judicial decisions that have no general effect whatso-
ever and only apply to the immediate parties (e.g. A and B) of a 
particular controversy (Lat. inter partes). Precedents entail judg-
ments having a general effect (Lat. erga omnes) in future cases, a 
situation is similar as the legal effect of legislation. Therefore, the 
crucial difference is that the precedent (i.e. erga omnes effect) 
means binding beyond the immediate parties, which can be des-
ignated as generally binding. Relating to the adverb “generally,” it 
is enough that it stretches to another party, in a future case, who 
has not been part of the dispute in which the precedent was set. 
Furthermore, the idea of “binding” implies normative or formal 
effects, meaning that it needs to be followed.
For the concept of judicial precedent, two approaches have 
been established in common law and civil law. The first was the 
stare decisis doctrine from English law, being the cradle of com-
mon law, meaning that one only decision of a senior court, to 
have general consequences for future cases, is enough to con-
stitute a precedent. I call this concept strict precedent. There is 
another, however, a civil-law based doctrine, jurisprudence con-
stante
14
 with the idea that in order to establish a precedent we 
need several same decisions of senior courts to become binding 
for future same cases. This second concept of precedent, I call 
loose precedent. Both concepts presuppose their binding effect 
in a specific jurisdiction in a vertical manner by higher courts’ 
precedents being binding on lower courts, as well as in a hori-
zontal way, which entails that courts are bound by their own prec-
edents.
However, although European civil law has faced a certain level 
of judicialization of its legal systems and thusly case law’s promi-
nence has been raised, it still cannot be said to have reached the 
level of its common-law counterparts in terms of rigor and formal 
strength (Novak, 2007). The model of jurisprudence constante is 
normatively weaker than stare decisis, although as we will see in 
the continuation, the European Continent has also introduced a 
model of judicial precedent akin stare decisis, and thus includes 
both the models, the stronger and the weaker one.
Further, there remain important differences between the two 
legal families also concerning the rationes/dicta doctrine(Novak, 
14 
This French doctrine has a German equivalent in ständinge Rechtsprechung.

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DIGNITAS ■ Civil Law
2008). That is importantly based on distinguishing cases on the 
basis of material facts, which is in the European Continental 
context underdeveloped at least when mentioning the distin-
guishing of crucial facts in the reasoning of judicial decision is 
concerned(Zweigert, Kötz, 1998). European Continental judicial 
systems abide by the difference between rationes and dicta but 
their approach is more relaxed in comparison with the common 
law. The same would apply to the existence of separate opinion of 
judges, which exist in some countries of the European Continent, 
but mostly only at the level of constitutional and supreme courts.
Moreover, before the introduction of statutory law on a more 
frequent basis, judicial precedents in England were solely prec-
edents of solution, meaning that were original creation of law, 
and upon more frequent legislation when the courts needed to 
interpret statutes, they were joined by the precedents of interpre-
tation (MacCormick, Summers, 1997). Thus, in the modern time 
common/law courts deal with both the mentioned two types of 
judicial precedents, whereas in the civil law only the precedents 
of interpretation have been possible since the precedents of so-
lution never existed, which means that judges have never been 
recognized the role of “original creators” of law.
4. Slovenia’s Dealing with Judicial Precedents
4.1. Vertical Precedential Effects
The Slovene law is a typical Central European legal system 
influenced by Roman law, Austrian monarchy law, and socialist 
law. In terms of judicial precedent, what has traditionally applied 
in general was the doctrine of ‘established’ or ‘settled’ case law 
(basically jurisprudence constante) (Štajnpihler Božič, 2018),
15
 
which is certainly typical for the entire European continent. That 
changed to some extent when Slovenia adopted its new Constitu-
tion in 1991 and joined the Council of Europe as well as the EU, 
which in many aspects contributed to introducing also the strict 
or formal model of judicial precedent.
First, the strict understanding of precedent, resembling stare 
decisis, can be ascribed to the power of the (Slovene) Constitu-
15 
That doctrine applied in Slovenia even during the communist era.

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
tional Court
16
 to strike down a statute if found unconstitutional 
(See Nerad, 2019, p. 448).
17
 In such a case, only one Court deci-
sion is needed, and as soon as it takes effect the unconstitutional 
statute, or usually part of it, is “erased” from the legal system.
18
 If 
the mentioned power of the so-called abstract constitutional re-
view has been accepted by lower courts without any opposition 
or, it could be better said, they had nothing to do with that as this 
Court’s power was exercised directly on the basis of the Consti-
tution, whose final interpreter is the Constitutional Court, it was 
a bit different with respect to the power of the Court to decide 
in constitutional-complaint cases. That is the second important 
power of the Constitutional Court. Although the Court wanted 
these types of decisions to apply erga omnes as strict judicial 
precedents, since according to Art. 125 of the Constitution judges 
are bound by the Constitution and statutes, and the Constitution 
is also what Constitutional-Court judges say it is (See Nerad, 2019, 
pp. 451– 452), from time to time some lower courts did not de-
cide to follow it in future cases, but argued instead that as other 
judicial decisions also this type of cases should only apply inter 
partes.
Second, by joining the EU in 2004, Slovenia subordinated part 
of its sovereignty to the jurisdiction of the Court of Justice of the 
EU (hereinafter: the CJEU), which is empowered to provide uni-
form interpretation of EU legislation. EU law is considered part of 
“domestic law” in member states that needs to be applied by na-
tional courts whenever parties submit their cases to the national 
courts based on alleged violations of EU law. Thus, whenever a 
national court finds an EU law (usually a regulation or directive) 
unclear it may adjourn proceedings - but the highest national 
courts must do the same in such a situation - and request the CJEU 
to give interpretation of that EU act, following which the national 
court finally decides the case. Such interpretation by the CJEU, 
which is to ensure the uniform understanding and application 
16 
The model of constitutional review that was adopted in Slovenia is European (Mavčič, 2018). Our 
“neighbor,” Hans Kelsen, the father of the European model of constitutional review, was also very 
much influential in other areas of law in Slovenia, like legal theory.
17 
See Nerad, 2019, p. 448, claiming that Constitutional Court decisions are binding having erga omnes 
effects. 
18 
See a similar view for Germany, in Opperman 107-120 and Stainer and König 121-130. However, if 
the Court finds that striking down a statute or part of it might cause a gap in the law, it establishes its 
unconstitutionality and calls the parliament to amend it within a specific deadline.

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DIGNITAS ■ Civil Law
of EU law throughout the entire EU, is binding erga omnes
19
 and 
can be considered strict or formal judicial precedents in all EU 
members.
Third, in the early nineties of the previous century, when be-
coming independent Slovenia joined the Council of Europe, 
whose most important judicial institution is the European Court 
of Human Rights (hereinafter: the ECtHR). That Court’s judgments 
are rendered upon applications by individuals who claim the vio-
lations of human rights under the European Convention for the 
Protection of Human Rights after all the domestic remedies have 
been exhausted against their state. The “usual” ECtHR decisions 
are considered having inter partes effects. However, when the 
ECtHR finds that in addition to establishing a human rights viola-
tion, there are also structural deficiencies in the violating state to 
be remedied, they issue the so-called pilot judgment, by which 
they call for structural reforms in such a country, usually to adopt 
a specific statute or amend legislation. Since such a judgment has 
erga omnes effect for such a state, it could also be considered as 
a version of the strict or formal judicial precedent.
20
Fourth, according to the Courts Act, the Supreme Court of Slo-
venia, which is empowered according to that Act to unify lower 
courts’ case law, may issue general opinions reached at a plenary 
session (Pavčnik, 2004). In this manner, such opinions would be 
formally binding on itself and all other lower courts. This would 
be considered having the same value as strict or formal prec-
edents with erga omnes effects. The problem is that the Supreme 
Court very rarely meets at a plenary session to consider and issue 
such opinions.
Furthermore, by the latest amendment of the Civil Procedure 
Act, the Supreme Court was given another tool to unify case law. 
When a judgment of the court of appeals is rendered, the par-
ties who opine that the case law is not uniform enough, in the 
sense that other courts of appeal have decided differently in the 
same case, may file a special revision (as an extraordinary legal 
remedy) with the Supreme Court to unify the case law. In such 
a situation the Supreme Court would accept such a revision and 
19 
See also Avbelj, 2009.
20 
In the view of both Zupančič and Zobec, the very existence of ECtHR pilot judgments demonstrate 
the non-existence of the erga omnes effect of »ordinary« ECtHR judgments (Zupančič, 2004; Zobec, 
2018).

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
through its decision make the case law of lower courts coherent. 
Such a Court decision is considered binding erga omnes, in the 
same manner as case law that has been established, and can be 
considered as a strict or formal judicial precedent. The problem 
is that this remedy is only possible in the civil procedure, and not 
in other areas of law (there are five areas of law covered by the 
jurisdiction of the Supreme Court) because only the Civil Proce-
dure Act was amended.
Fifth, case law that is considered as established (i.e. jurispru-
dence constante) is binding (erga omnes) on the courts and can 
be considered to have similar effects as strict or formal judicial 
precedents. Moreover, an important step was made in Slovenia 
in the early 90s, when the Constitutional Court found courts’ 
arbitrary departure from settled case law a violation of the hu-
man right of equal protection of rights (Article 22 of the Slovene 
Constitution). That means that if there is established case law, no 
court may ignore it although they can decide the case differently 
by distinguishing it from the case law established (Galič, 2019). 
However, the problem is that it is not entirely clear how many 
same cases need to be decided for case law to be considered es-
tablished. In one opinion the Constitutional Court said that one 
or two cases decided in a same manner do not already constitute 
such. Consequently, there need to be at least three same decisions 
in order for the case law to be considered established (Galič, 
2003).
Last but not least, a constitutive part of the doctrine of prece-
dent is also distinguishing between rationes decidendi and obiter 
dicta, as between binding and persuasive authority. Only rationes 
are binding. The highest Slovene courts, i.e. the Constitutional 
Court and the Supreme Court accept the differentiation between 
the two but when they discuss or distinguish previous cases as 
precedents in the reasoning of their decisions they do not pay as 
much attention to material facts as is the practice of common-law 
courts. This also follows from the headnotes summarizing their 
cases where mainly crucial reasons are presented without includ-
ing the material facts.
21
 However, the culture of precedent with 
also distinguishing between rationes and dicta has been strength-
21 
See, more generally, about a similar practice of other Continental courts, in Zweigert and Koetz, 
1998, where they criticize them for approaching headnotes as if statutory (abstract and general) 
provisions are dealt with. 

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DIGNITAS ■ Civil Law
ened by introducing the possibility of all Supreme Court judges 
to write their separate opinions. For the judges of civil and penal 
departments of the Supreme Court that became possible based 
on explicit grounds in the Civil Procedure Act and the Criminal 
Procedure Act, whereas for administrative judges through the 
subsidiary application of the Civil Procedure Act in proceedings 
dealing with the judicial review of administrative acts.
Accordingly, in the recent decades the Slovene legal system has 
witnessed quite a few changes towards embracing a more formal 
approach to judicial precedent. The vertical concepts of the Conti-
nental version of stare decisis discussed above, as well as also the 
doctrine of settled jurisprudence, entail that lower courts (more or 
less) follow the case law established by higher courts, which is also 
the case in Slovenia. From this point of view, as a general tenet, 
like other Continental legal systems also the Slovene legal system is 
no longer that far apart from common-law ones, however, several 
specific significant differences are still persistent.
4.2. Horizontal Precedential Effect Problems
Horizontal stare decisis is generally considered as a softer ver-
sion of judicial precedent because in its framework precedents 
are considered persuasive, not formally or strictly binding. It 
relates to both (i) courts’ own previous decisions and the (ii) 
decisions of courts of the same level. With respect to (i), in gen-
eral, both common law and civil law (including Slovenian) courts 
abide by their previous decisions and occasionally overrule 
them, by finding new reasons for reaching different decisions. 
To this point, there is no difference between civil and common 
law courts. Modern courts no longer consider themselves strictly 
(formally) binding by their previous decisions like it was the case, 
e.g., with the British House of Lords until the late sixties of the 
previous century (Zweigert, Kötz, 1998). In a fast-changing world, 
in which the social context of judgments is being changed instan-
taneously, it would be impossible to maintain strict obedience to 
former decisions. However, unlike the common-law courts, their 
civil-law counterparts are not that consistent, analytical, and de-
tailed, especially concerning the cases’ material facts, when pro-
viding distinguishing reasons to overturn their previous decisions 
(Zweigert, Kötz, 1998).

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
But, at least when the Slovenian courts are concerned, there 
is even a greater difference with common-law courts as regards 
(ii). Although the horizontal effect of judicial precedent does not 
imply formal bindingness, common-law courts are generally not 
completely free to disregard the previous decisions of different 
panels of the same court or the courts of the same level within 
the same jurisdiction. They are bound to follow even persuasive 
authorities based on the principle of judicial comity, which means 
that the horizontal stare decisis is more rigid than one would think 
from a first glance. For example, U.S. federal courts of appeal have 
adopted rules imposing on judges the duty to defer to previous 
decisions of their colleagues either in other panels of the same 
court (intracircuit) or at the same level (extracircuit), although the 
intracircuit comity is generally followed whereas the extracircuit 
comity is followed much less.
22
Similarly, in Canada, in a recent decision (R v. Sullivan, 2022, 
SCC 19, prs. 1–3), the Supreme Court held that decisions of the 
same court should be followed as a matter of judicial comity. A 
decision may not be binding if it is distinguishable on its facts 
or if the court has no practical way of knowing it existed. If it is 
binding, however, a trial court may only depart from it in the fol-
lowing one of three narrow circumstances: (a) the rationale of 
an earlier decision has been undermined by subsequent appel-
late decisions; (b) the earlier decision was reached per incuriam 
(“through carelessness” or “by inadvertence”); or (c) the earlier 
decision was not fully considered (e.g. taken in exigent circum-
stances). Consequently, the conventional principles of horizon-
tal stare decisis govern the manner in which previous declarations 
of unconstitutionality subsequently constrain courts of coordi-
nate jurisdiction in a province (Stanca, 2022).
Moreover, the horizontal problems of the stare decisis doctrine 
resulting in divergent decisions at the same court are in common 
law usually resolved en banc, when all of the judges of an appel-
late court collectively decide a case. That occurs when the court 
believes that the matters are especially complex and important, 
or when the panel’s decision appears to conflict with a prior de-
cision of the court (Abadinsky, p. 389). According to the Federal 
Rules of Appellate Procedure, such a hearing may be ordered to 
22 
There are even ideas that such judicial comity would need to be extended to discrict courts (Mead, 
2012). 

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DIGNITAS ■ Civil Law
maintain uniformity of decisions within the circuit.
23
 The problem 
is that such hearings are very rarely held (Article 35 (a)).
In Slovenia, too often occurs that different panels of the same 
appellate court and even different panels of the Supreme Court 
reach different decisions in essentially similar cases. In cases 
in which case law has not been established, local courts (44 in 
number) and district courts (11 of them in total)
24
 easily reach 
divergent decisions even in same kind of cases (Novak, 2018, p. 
137). Parties and lawyers normally complain about that (Novak, 
2015).
25
 There already exists the possibility of a joint session of 
all Supreme Court judges to be called, through which they could 
make case law uniform for the entire legal system, but they very 
rarely meet and thus do not perform well that competence given 
to them according to the Courts Act. For that reason, the Courts 
Act in Slovenia was to be amended introducing the so-called ‘ex-
tended’ panels at the Supreme Court whose hearing would be 
called by appellate courts, the task of which was to contribute to 
making the case law of individual panels of the Supreme Court 
uniform (Novak, 2018, p. 138), but that amendment unfortunately 
failed in the parliamentary procedure (Novak, 2018, p. 138).
The authority of judicial precedents is better upheld if all court 
decisions are published so that not only judges, lawyers, but also 
parties have an opportunity to follow previous model judgments. 
In contradistinction with common law systems, in which publish-
ing especially court judgments of higher courts has been an old 
practice, in a civil-law system like Slovenian this has not been 
achieved yet. Thus far only all Constitutional Court and Supreme 
Court judgments have been published, but not all judgments of 
appellate courts, and no judgments of first instance courts al-
though they write extensive reasoning, which mainly represent 
interpretations of various statutes.
26
 The publication of all judg-
ments is also a prerequisite for any use of advanced AI systems 
to monitor how the uniformity of case law is followed, which I 
23 
Article 35 (a).
24 
In Slovenia being a unitary state, according to the Courts Act, there are local and district courts as 
the courts of first instance. They are divided into four jurisdictions of courts of appeal presided by 
one Supreme Court. 
25 
Uniform case law is important because parties expect to be treated, in the manner of courts rea-
ching decisions in their cases, in an equal manner. 
26 
Five years ago, the then Minister of Justice amended the Court Rules in which he required that also 
all judgments of first-instance courts should be published. Following that amendment, the Supreme 
Court introduced a project of anonymization and publication of such judgments, which has not yet 
borne fruit.

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DIGNITAS ■ Judicial Precedent in Civil Law: A Critical Perspective on the Slovenian ...
believe will help improve that area in the future, as a tool assisting 
the courts (Sourdin, 2020). 
5. Conclusion
Although the two major legal families – the common law with 
its original English parent and many adoptive parents, and the 
civil law with many more original and adoptive parents – have 
especially in the ear of globalization come much closer than they 
have even been, many differences are still perpetuated. One of 
them is the approach to judicial precedent. By studying the excel-
lent works produced by the “Bielefeld Kreis”,
27
 it seems that the 
differences in the area of following and interpreting, in short the 
entire methodology concerning dealing with, judicial precedents 
have still been greater than in the area of statutory interpretation.
Having been aware of the above-said divide, I published al-
ready in 2008 a chapter entitled the Culture of Precedent in my 
legal philosophy and theory book,
28
 where I collected and even 
extended my previous criticism of the civil approach to the judi-
cial precedent. Unfortunately, nothing has really changed from 
those times, at least in Slovenia. But also, more broadly, in the 
context of the EU or Continental Europe at large, no important 
changes seem to be upcoming in this regard.
Maybe that is no longer a question of normativity and epis-
temic strength but more of (legal-cultural) identity, ideology, or 
simply the matter of (the right to) being different?
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