LOS PRECEDENTES COMO NORMAS: UNA RECONSTRUCCIÓN DESDE LA TEORÍA ANALÍTICA DEL DERECHO

This thesis addresses the concept of “judicial precedent”, beginning with the fundamental question: “What is a precedent?” The research is developed in four chapters that present a rational reconstruction of the concept and an analytical theory of the phenomenon. It is divided into two parts: the clarification of the existing concept and the formulation of a more precise version. The first two chapters analyze the linguistic and descriptive uses of the term “precedent” and the empirical entities that can be referred to as such. The next two chapters are oriented towards the construction of a theoretical concept. To this end, the thesis first examines some models for reconstructing the concept of precedent proposed in the legal-theoretical literature and then explores the implications of conceiving precedents as norms. The main hypothesis argues that the best explanation of the phenomenon of judicial precedent builds on the idea of the use of prior rulings, distinguishes between precedent and rules on precedent, differentiates legal systems where the use of precedent is normatively relevant from those where its relevance is merely factual, and understands rationes decidendi as legal statements. The conclusion affirms that precedents can be satisfactorily analyzed as norms in a legal system.