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A conception of constitutional precedent for the civil law

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posted on 28.03.2022, 19:49 authored by Rodrigo Camarena González
This thesis critically assesses the migration of the common law doctrine of precedent to civil law constitutionalism using Colombia and Mexico as case studies. Over the last two decades, constitutional judges have been abandoning the civil law doctrine of jurisprudence constante marked by a persuasive approach to precedent and instead are taking judicial interpretations of the constitution as binding sources as their common law colleagues. Judges are also using common law concepts as the ratio decidendi of a case, and techniques as distinguishing or overruling precedents. Despite the convergence of legal traditions regarding the use of precedent, the civil law is marked by an overproduction of constitutional judgments, a more abstract and textual approach to legal reasoning and longer constitutions. Without a proper reconfiguration of the doctrine of precedent, its use in a new context runs the risk of threatening the right to equality before courts of law solving similar cases differently without a reasonable justification thereby producing incoherence among precedents. With the aim of reconfiguring the doctrine of precedent according to civil law style of legal reasoning and endemic challenges, this thesis endorses a normative conception of constitutional precedent called Constitutional Reciprocity. This conception is an adaptation of John Rawls' coherentist method of Reflective Equilibrium for the institutional and intersubjective context of constitutional adjudication in the civil law. Inspired by this approach, according to Constitutional Reciprocity, judges ascribe norms to constitutional provisions when solving cases. Thus, judges bear the burden of argumentation in showing that a potential judgment supports and is supported by a set of constitutional provisions and judicially ascribed norms. They need to justify that a particular judgment is more coherent with the relevant pre-existing law than its alternatives. In this way, Constitutional Reciprocity adapts the method of Equilibrium originally proposed in the field of Moral Philosophy, to achieve a reasonable degree of coherence in precedents in the civil law.

History

Table of Contents

Introduction. The migration of the common law doctrine of precedent to civil law constitutionalism -- Chapter I. Incoherence among judicially ascribed norms -- Chapter II. The principle of universalisability of precedent and its limits -- Chapter III. The constrained role of particulars in constitutional adjudication -- Chapter IV. The framework of constitutional reciprocity -- Chapter V. The first dynamic feature of constitutional reciprocity : distinguishing and confining ascribed norms -- Chapter VI. The second dynamic feature of constitutional reciprocity : overruling ascribed norms -- Conclusion. An adequate migration of the doctrine of precedent to civil law constitutionalism -- Bibliography.

Notes

Theoretical thesis. Bibliography: pages 268-292

Awarding Institution

Macquarie University

Degree Type

Thesis PhD

Degree

PhD, Macquarie University, Faculty of Arts, Macquarie Law School

Department, Centre or School

Macquarie Law School

Year of Award

2017

Principal Supervisor

Carlos Bernal Pulido

Additional Supervisor 1

Denise Meyerson

Rights

Copyright Rodrigo Camarena González 2017. Copyright disclaimer: http://mq.edu.au/library/copyright

Language

English

Extent

1 online resource (vii, 292 pages)

Former Identifiers

mq:71654 http://hdl.handle.net/1959.14/1276722