Jurisprudence

Principal court of the Supreme Court of Spain.

The jurisprudence is the set of sentences and other judicial resolutions issued in the same sense by the judicial bodies of a specific legal system. It has a fundamental value as a source of knowledge of positive law, with which it seeks to prevent the same legal situation from being interpreted differently by the courts; this is what is known as the unifying or unified principle.

Jurisprudence is understood as the doctrine established by the judicial bodies of the State (generally, the Supreme Court or Superior Courts of Justice) that is repeated in more than one resolution. This means that in order to know the full content of current regulations, it is necessary to consider how they have been applied in the past. In other words, jurisprudence is the understanding of legal norms based on the sentences that have resolved cases based on those norms.

The study of the variations of the jurisprudence over time is the best way to know the evolutions in the application of the laws, perhaps with greater accuracy than the mere review of the different reforms of positive law that in some cases they do not actually apply despite their official promulgation.

In Anglo-Saxon law it is a source of important magnitude, because judges must base their decisions or judicial sentences through a meticulous study of the precedents, facts or evidence that incriminates the detainee without violating or violating their main rights.

In continental law, jurisprudence is also a formal source, although its value and binding force vary substantially according to the local laws of each country. Thus, in some cases, the rulings of a certain type of higher courts are of mandatory application for equivalent cases in lower courts; in others, the decisions of similar jurisdictional instances are not usually binding on lower judges, except that certain specific circumstances arise when it comes to unifying uniform interpretative criteria on specific issues of law (as in the case of plenary sentences). in Argentine law). Finally, and as a more widespread alternative in the States that have these legal systems, it is possible that higher level rulings are in no case binding for the rest of the courts, although they do tend to have significant dogmatic force when it comes to predicting future decisions. and establish the grounds for a given petition before the lower courts.

In any case, neither does the study of the sentences give us the exact measure of the reality of the Law because it happens that sometimes and for various reasons the sentences stop being fulfilled or applied.

This is especially so when the Judicial Power collides with other powers of the modern State such as the executive and the legislature, and although it compromises the principle of separation of powers, it is a phenomenon that cannot be completely ignored when developing a theory of law, at the risk of appearing totally separated from legal and social reality.

Regulation by country

Argentina

As there are 24 states in Argentina, corresponding to 23 provinces plus the Autonomous City of Buenos Aires, there are 24 different judicial powers. One for each state. To this must be added the Nation's Judiciary. Consequently there are 25 somewhat independent judiciaries. The Supreme Court of Justice of the Argentine Nation is the highest reference in terms of jurisprudence, but in turn each independent state of the federal organization has its supreme court. In the same way, the last word in matters of justice is not held by the Supreme Court of the Nation, because the Argentine State signed international agreements where it resigns jurisdiction in International Courts, such as the Inter-American Court of Human Rights of San José, Costa Rica.

When there is a conflict between parties, regarding interests protected by law, and this conflict is not resolved out of court, the affected party may appeal to the judge requesting that justice be done. A judge is used by filing a claim that is a container whose content is the action. The right to appear before the authorities to petition that justice be done is the right of action. The right of action is not related to the possession of a right, but to the right to petition, because it may be that after the whole process the judge decides against the plaintiff. So the plaintiff, who filed the lawsuit, exercised his right of action despite not having the right. The judge makes the decision or decides or dispenses justice through sentences. The sentence is the culmination of the process. Through the sentence the judge resolves a specific case. The judge acts with concrete cases, he cannot decide in the abstract, because he does not have legislative powers. The judge acts at the request of the party (the plaintiff) who initiates the action petitioning the judge. The process is a mode of debate that takes place before a judge who is a third party to the parties and who is independent and impartial. The judge, if it gives rise to the presentation of the demand, will send the defendant to answer the demand. When the defendant answers the lawsuit, the litigation is closed. The litigation is a litigation, it is a conflict brought to the legal world. After the claim has been answered, the dispute must be proven. If there are no disputed facts and both parties agree on the facts, then it is a matter of pure law and there is no need to open the case for trial. This is so as long as public order is not affected. Because if someone sues for filiation to inherit everything and the defendant agrees and says that he is the father and that he has the hereditary right to everything, public order is affected. So when public order is affected it is necessary to test. After the evidentiary period is closed, comes the stage of the allegations, where each party alleges that the other party is well proven or poorly proven. After the allegations, the judge issues a decree called "autos para sentencia". If this decree remains firm, the vices of the process are purged and the proceedings go to judgment. The sentence can be finalized or appealed. The firm sentences are those that make the jurisprudence. But it doesn't matter so much whether they are firm or not, what matters is the argument used by the judge. Because there are sentences that do not have very good arguments and the other party does not appeal them and they remain firm. And there are sentences with very good arguments that are not firm. There are even rulings by collegiate courts where the arguments of those who voted in dissent are very interesting. So they are good arguments to take into account, but they failed to decide the sentence in favor. It can also be the case of an Appeals Chamber that had several rulings in one direction and then, due to some overriding argument, changes its criteria. Then the losing party files an appeal for not having followed the same jurisprudence and the Chamber simply says that it changed its criteria due to a new argument. In the event that a Chamber changes its criteria, it is most likely that the costs of the trial will be due to its order and not the total to the losing party, because the plaintiff party had reason to litigate. There are cases of interpretation in the province of Santa Fe where the same article of the law in the Jurisdiction corresponding to Rosario is interpreted in one sense and in the Jurisdiction corresponding to Santa Fe the same article is interpreted in another sense. The Supreme Court of the Province of Santa Fe has not yet had the opportunity to unify jurisprudence because it has to wait for the specific case to arrive. Because if the Supreme Court of the Province of Santa Fe decides in the abstract without waiting for the specific case, then it would act as a legislator and would be violating the division of powers of the Republic. The laws are in the abstract, they do not refer to a concrete case. The judgments refer to specific cases, which are brought to them by the parties.

Chile

In the case of Chile, court rulings do not have general effectiveness, so it is perfectly possible that lower courts may rule in contradiction with previous rulings from higher courts. This matter is expressly elucidated in the Law; in effect, the Civil Code indicates in this regard in Art. 3rd inc. 2nd that "Judicial sentences do not have binding force except with respect to the causes in which they are currently pronounced". However, the aggrieved party may file an appeal for annulment (in criminal matters) or annulment (in civil matters) before the Supreme Court of Justice, so that it can decide if the court has ruled based on an error of law .

Ecuador

Jurisprudence; Set of rulings, sentences or resolutions issued by the highest bodies in the Jurisdictional or Administrative field. Judicial processes by nature have:

Ordinary jurisdiction. 

* 1st Instance: It is carried out by the lower Judges.

* 2nd Instance: It is carried out by the Provincial Judges. (Provincial Court)

* Cassation: It is carried out by the National Judges. (National Court)

Extraordinary protection action 

Article 94 of the Constitution of the Republic of Ecuador stipulates that "Extraordinary action for protection will proceed against judgments or final orders in which rights recognized in the Constitution have been violated by action or omission and will be filed before the Constitutional Court. The appeal will proceed when all ordinary and extraordinary remedies have been exhausted within the legal term, unless the failure to file these remedies was not attributable to the negligence of the holder of the violated constitutional right"

Generally, jurisprudence is defined as the set of rulings or sentences issued by judges, however, it must be taken into account that not every judge issues a jurisprudence, since these are triple reiteration rulings; that is to say, the Court has resolved on three different occasions on the same aspect.

Spain

In Spain, jurisprudence is considered an indirect source of law. According to art. 1.1 of the Civil Code, in the Spanish legal system only "law, custom and general principles of law" are sources of law (art. 1.1).

However, art. 1.6 of the Civil Code establishes that jurisprudence "will complement the legal system with the doctrine that, in a reiterated way, the Supreme Court establishes when interpreting and applying the law, custom and general principles of law", therefore, although it is not source itself, its power to modulate the law and establish what the general principles of law (which is properly an indeterminate legal concept) have to be, gives it unparalleled relevance.

The jurisprudence is constituted from two sentences that interpret a norm in the same sense, emanating from the Supreme Court (superior jurisdictional body in all orders, except for the provisions on constitutional guarantees) and, when it comes to certain matters of competence limited to the autonomous community (for example, regional or special law), of the Superior Courts of Justice of the corresponding autonomous community.

Those that do not meet these characteristics are only considered "precedents", serving only as support for a certain thesis upheld in court, as they lack authentic normative content. In the same way, a ruling issued by a High Court of Justice lacks normative relevance for other High Courts of other autonomous communities, which can issue rulings that are not consistent with said interpretations, and even contradictory. In these cases, the appeal for the unification of doctrine can be filed before the Supreme Court, which will marry both sentences determining which of the contradictory interpretations enjoys the approval of the High Court.

In the event that a judge or court deviates from the doctrine established by the Supreme Court, the sentence is not automatically invalidated, but serves as grounds for appeal. However, the Supreme Court can deviate at any time from its consolidated jurisprudence, so this normative production is essentially mutable, adapting to the times with each ruling.

It is necessary to refer to the Constitutional Court, since despite not being a judicial body but a constitutional one (as its name indicates) it also issues judgments, with the technical name of «jurisprudence». Said sentences, due to the special degree of their issuing body, have normative effects, since the Constitutional Court is the supreme interpreter of the Constitution. Indeed, article 5.1 of the Organic Law of the Judiciary clearly determines that the Constitutional Court's rulings are binding, and judges and courts must interpret all the rules in accordance with the interpretation of the same rules resulting from the resolutions issued by the Constitutional Court. Constitutional Court in all kinds of processes.

Guatemala

Based on article 2 of the Judicial Organism Law, it can be deduced that the law is the main source of the law, although the jurisprudence will complement it without developing the normative body based on which the jurisprudence is created, so it enters into Article 43 of the Law of Amparo, Habeas Corpus and Constitutionality, which estimates that 3 contested rulings in the same sense of the Constitutional Court create mandatory legal doctrine for all courts, and in the ordinary order in article 621 of the Civil and Commercial Procedure Code, which establishes that 5 contested and uninterrupted rulings of the Supreme Court of Justice, with the favorable vote of 4 magistrates in cassation appeal, also create legal doctrine, currently jurisprudence is a great strategy in litigation to show to the court of first instance that would occur if the case reached the Constitutional Court or the Supreme Court of Justice and power and prevent them from issuing a fundamentally low ruling that will later surely be reversed.

A current strong current is to give more importance to jurisprudence since it evolves faster than laws, as a formal source of law and at the time of the Legislative Body for the repeal, abrogation or creation of new laws.

Mexico

In the specific case of Mexico, jurisprudence is generated by three alternative means: a) Through five resolutions that in the same sense, emanate from some instances of the Judicial Power of the Federation (Plenary or Chambers of the Supreme Court of Justice of the Nation [SCJN] and the Collegiate Circuit Courts) without a single one being filed otherwise. These resolutions individually are called isolated theses; b) Jurisprudence can also be formed through thesis contradiction, which consists in the Plenary or the Chambers of the SCJN resolving the criteria that must be upheld on a particular issue where there are contrary or diverse positions held, respectively, by the Chambers of Jurisprudence. the SCJN or by the Collegiate Circuit Courts; c) Finally, and by virtue of a mandate of the Constitution, the resolutions issued by the SCJN when resolving cases of constitutional controversy or actions of unconstitutionality, as reflected in the legally protected assets, will constitute jurisprudence.

The resolutions will constitute jurisprudence, provided that those resolved in them are supported by five sentences not interrupted by another to the contrary, and that they have been approved by at least eight ministers, if it is plenary jurisprudence, or by four ministers in cases of jurisprudence of the two Chambers.

The organic laws of the Tax Court of the Federation and the Contentious-Administrative Court of the Federal District also regulate the formation and effects of their own established jurisprudence.

Paraguay

In exemplary processes and in rulings of unanimous sentences of the Supreme Court of Justice, they have provided solutions to daily problems in the civil sphere, in order to later establish jurisprudence capable of alleviating shortcomings in said aspect and subsequent clarification of the demands made by the citizens who have a legal problem.