Abstract
Is there something like a "mistaken" case law that an attorney should not or even must not be able to argue? This is the question asked by attorney dr. Tomáš Sokol in an article "Advokát a judikatura" [Attorney and case law] published in BA No. 11/2010.
He claimed that the case-law cannot be considered as a source of law and therefore cannot be formally binding. Thus, a lawyer can choose arguments, such as those contained in the case-law, which are in favour of his client and not those to his disadvantage.
Especially in connection with § 13 of the Civil Code, both the view of legal theory and judicial practice on the role of case law in contemporary law has changed. Opinions have been published on the so-called "discursive" or "subsidiary" binding nature of case law, and even on the fact that case law is a source of law.
The ambition of this article is therefore to analyse and indicate whether even today the reference to case law can only be considered as a reference to a more or less convincing argument. The article therefore deals with the question of what follows from the discursive binding effect of the case law for judges, how the court should analyze the relevant case law in relation to the case being decided, which case-law can or ought to be argued by the court, and what case law "should" and "may" attorney argue.