Abstract

SIERRA SOROCKINAS, David. Precedent: A Concept. Rev. Derecho Estado [online]. 2016, n.36, pp.249-269. ISSN 0122-9893.

In this paper, I propose a concept of "precedent", from the perspective of an analytical theory of law. The hypothesis is: the "precedent" is a creation of the interpretation that a juridical operator does from the reading of a "sentence". I begin with the assumption that (I) the "sentence" is the text that the "judge" produces, (II) the interpretation that a juridical operator does of one or several "sentences" it is the "jurisprudence" and (III) the "jurisprudence" is comprised for: the "precedent", the "jurisprudential concepts" and the "norm". I make a distinction between ratio decidendi and obiter dictum to demonstrate that the "precedent" depends on the interpretation that a juridical operator does.

Keywords : Precedent; jurisprudence; sentence; theory of law; ratio decidendi; obiter dictum.

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