We explain what jurisprudence is, some characteristics of this set of sentences and the types of jurisprudence there are.
What is jurisprudence?
The jurisprudence , in the legal language , refers to the set of pronouncements dictated by people who have the capacity and power to interpret the legal norms , adapting them to each specific case.
The passage of legislation and the establishment of laws to their actual compliance require decisions, which are sometimes not explicit in the rules. It is precisely because of these jurisprudence issues that judges are not and cannot ever be mechanical persons who act to the letter , but must form and possess particular criteria.
The jurisprudence is formed from all judgments of judicial courts , since everything will constitute a precedent for action. This is why a decision of a judge not only has the current effect, but will serve as a precedent for future occasions, both of them and of other magistrates. The phrase ‘ sit jurisprudence ‘ is used precisely for those situations in which a judge establishes the parameters with which justice will begin to be issued in some case.
The jurisprudence is then a source of law , whose value varies according to the organization of each country. It differs from the other sources:
- Legislation. The Constitution, National and Municipal Laws, decrees of lesser value are included here,
- Doctrine. Studies and observations of a scientific nature, made from jurists,
- Custom . Circumstances that, without going against any law or decree, are repeated for a time and are accepted by a community until they become cultural, even if they are not registered or legislated.
Anglo-Saxon law, which prevails in England, in the United States and in some countries of Oceania, is based primarily on jurisprudence and judgments issued by the same court. It is considered, in that area, that jurisprudence is the main source, called common law .
Its origin dates back to the time when William the Conqueror was on the throne : the law was something relatively new and legal authority was considered to be emanating from God. This jurisdictional mechanism was developed by the centralization of the administration of justice in the hands of the monarch, who distributed judges throughout the country who were able to establish their own jurisdictional policy.
Types of jurisprudence
A classification can be established within the concept and definition of jurisprudence, according to its condition with respect to the law itself:
- J urisprudence against legem. It is the one that determines results contrary to the laws. It could only be valid in the case of a country in which jurisprudence is above the law on the scale of sources, which could not happen in the countries of continental law (like ours).
- Deforming case law. It is the one that is issued by altering the meaning of a law, applying it but in a case other than that for which it is intended.
- Repeal case law. It is the one that interprets legislation as unconstitutional. It is not an annulment of the written law, but an inapplicability in the facts.
- Plenary jurisprudence. It is the one that is applied through a meeting of all the judges of a chamber or a court. These failures are known as plenary failures.
- Restrictive case law. It is the one that interprets a law limiting its application. The rules that establish privileges stand out in this case.