Ensuring Uniform Case Law in Slovenia: Jurisprudence Constante, Stare Decisis, and a Third Approach

Abstract

The judicial doctrine of jurisprudence constante is a civil-law equivalent of the common law doctrine of stare decisis. Both doctrines resulted from the 19^th-century legal positivist movement criticizing the liberty of courts when deciding like cases. If stare decisis has developed into a normatively serious doctrine ensuring coherent and consistent adjudication, jurisprudence constante, however, did not go that far. After a short historical introduction regarding the development of both doctrines, this paper discusses their most important normative differences, provides reasons for these differences, and analyzes the problems that the civil-law doctrine presents in the Slovene legal system in particular, the possibility of transplanting the common law doctrine to our country, and the need for a third way approach to better ensure uniform case law in Slovenia.