FROM JUDICIAL PRECEDENTS TO BINDING PRECEDENTS: ADVANTAGES OR THREATS TO LOWER COURTS?

Abstract

The theories of legal argumentation, globalization in the legal field and the consolidation of constitutional jurisdictions have promoted the progressive centrality of jurisprudence in our days, thanks to the leading role recognized in the judicial function. Jurisprudence, judicial precedents and legal doctrine are concepts that although they are closely related concepts, do not mean the same nor do they entail the same degree of connection for the judge. If we add to this the confusion that results from using concepts in the continental system to which we give the meaning it has in the Anglo-Saxon system, the situation of confusion increases. In this work we will pay special attention to the doctrine of the judicial precedent. The approach of civil law to common law, the distinction between precedent, jurisprudence and legal doctrine will be analyzed. The doctrine of precedents will be examined in various contexts such as in the Spanish Constitutional Court, in Mexico and in Brazil, paying special attention to the universality of precedents and mandatory precedents, which raises questions as to whether independence will not be invaded of the judge.

Keywords

• civil law
• common law
• jurisprudence
• judicial precedent