Argumentos jurídicos y precedentes jurisprudenciales. Un experimento de sociología judicial entre la práctica y la teoría

The object of this contribution is to analyze some of the main types of legal arguments usually found in judicial precedents in order 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 with a view also to elicit a comparison between the uses of judicial precedents in different judicial 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. The study defends the thesis that the argument from precedent is, in fact, a very heterogeneous and much more extensive family of arguments than is usually assumed from traditional taxonomies of legal arguments. Moreover, the study defends the thesis that case law is inevitably a “source of law” for pragmatic reasons inherent to judicial reasoning.