Constitutive rules of precedent
The purpose of this paper is to reject the thesis that a system of precedent is established with a prescriptive norm. This claim is supported by two lines of reasoning. First, it is claimed that systems of precedent necessarily require constitutive norms and not prescriptive norms. Second, any syste...
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| Vydáno v: | URI:https://journals.openedition.org/revus, |
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| Hlavní autor: | |
| Médium: | Article ou chapitre numérique |
| Jazyk: | Anglais |
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Revus
2022
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| Témata: | |
| On-line přístup: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| Shrnutí: | The purpose of this paper is to reject the thesis that a system of precedent is established with a prescriptive norm. This claim is supported by two lines of reasoning. First, it is claimed that systems of precedent necessarily require constitutive norms and not prescriptive norms. Second, any system of precedent comprises at least two, if not three, constitutive rules of precedent. While one confers the power to set a precedent, another conditions the validity of a judicial decision to the fact that it follows the precedent. Finally, there may also be a third rule that confers the power to ensure that precedent is followed and to annul divergent decisions. |
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