A conception of constitutional precedent for the civil law
thesisposted on 2022-03-28, 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.