On Summarizing Case-Law and Precedents

Abstract

The aim of this paper is to carry out a reconstruction and critical analysis of the institutionalized mechanisms for the identification of rationes decidendi, that is, the norms formulated and/or used in judicial decisions for the decision and justification of other cases. In the first place, it begins with an introduction by giving an account of the current importance of the phenomenon. Secondly, the fundamental concepts of any theory and/or doctrine of precedent are established: precedent, rule of precedent and ratio decidendi. Thirdly, it is analyzed what these mechanisms of institutionalized identification of the rationes decidendi consist of. Fourth, some advantages of incorporating mechanisms of this type in a legal system are presented. Fifth, some of the supposed dangers that such mechanisms would entail are analyzed. Sixthly, two real dangers are analyzed that the identification of rationes decidendi through these mechanisms does entail. It ends with some brief conclusions.