Legal arguments and case law precedents: An experiment in judicial sociology between practice and theory
Articolo
Data di Pubblicazione:
2022
Citazione:
Legal arguments and case law precedents: An experiment in judicial sociology between practice and theory / S. Zorzetto. - In: PROBLEMA ANUARIO DE FILOSOFÍA Y TEORÍA DEL DERECHO. - ISSN 2448-7937. - 2022:Special Issue(2022 Dec 07), pp. 1-11. ((Intervento presentato al convegno Seminar, entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges”. tenutosi a UNAM Mexico nel 2021 [10.22201/iij.24487937e.2022.16.5.17581].
Abstract:
The object of this paper is to analyze some main types of judicial arguments based on precedents to grasp their relevance and range in practice. The analysis is drawn from the case law of the Italian Court of Cassation Civil United Sections, to elicit a comparison between the uses of precedents in different legal systems. However, the analysis is of an explanatory or critical-reconstructive nature and illustrates a series of uses and problems linked to judicial reasoning, the scope of which is general and therefore goes beyond the specific juridical context at hand. The analysis is conducted from an internal point of view and, particularly from the standpoint of the decision-maker (i.e., the judge) and addresses some vexatae quaestiones surrounding the idea that case law is the source of law in practice. This study the opinion that the argument surrounding precedent is, in fact, a very heterogeneous and much more extensive family of arguments than what is usually assumed from traditional taxonomies of judicial arguments. Moreover, the study defends the opinion that case law is inevitably a 'source of law' for pragmatic reasons inherent to judicial reasoning.
Tipologia IRIS:
01 - Articolo su periodico
Keywords:
Case Law Precedent, Judicial Arguments, Judicial Reasoning, Sources of Law, Stare Decisis Doctrine;
Elenco autori:
S. Zorzetto
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