Case law with comments

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Written by Olga Jelčić

The Importance of Case Law

Although according to the Constitution of the Republic of Croatia (art. 117. par. 3. of the Constitution), the courts are judging on basis of the Constitution and Law, their function in the interpretation of the Law is important, especially when the regulations are incomplete, unclear, inconsistent or not in the agreement with other regulations, as is the case, for example, with some ordinances regulating the institute of the maritime domain. By power of argument and authority of the courts, which express a distinct legal opinion in the interpretation of legal norms, they get accepted by the majority of the other courts of law, thus creating the case law.

Case law is in legal theory defined as a totality of agreed legal opinions, which were expressed by the courts of law in their decisions. Generally, legal opinions recognized in case law are not binding (except in cases defined by law) so, formally, case law is not a source of law. However, as case law i.e. legal opinions expressed in it, is most often respected by courts of law, it is in fact an actual source of law and it contributes to legal equality and legal safety.

Given the significance of case law, we will describe the essential parts of legal opinions expressed by courts of law in their rulings concerning the maritime domain, its legal status and rights. Along with the rulings, the author will give a brief comment on legal opinion by giving its basic points, eventual discrepancies or differences in relation to the existing case law, as well as her opinion on the legal matter in question. The comments are expressing author's personal view.

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