General Theory of Law and State.

Konvitz, Milton R.; Kelsen, Hans; Wedberg, Anders

doi:10.2307/2181978

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Legal Norms Grounding Binding Precedents1

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1997

2024

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Cited by 159 publications

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“…Another very widespread thesis maintains that precedents are binding when courts are obligated to follow them (see, e.g., Cross and Harris 1991, 3–4 and chap. 3; Gascón 1993a, 212; Guastini 2011, 262; Iturralde 2013, 196; Kelsen 1945, 149–50; 1967, 250–6; Schauer 2009, 36–44; Raz 2009, 183; Wróblewski 2001, 305). From this point of view, the existence of a binding precedent depends on the existence of a regulative or prescriptive norm, particularly a norm that, under certain circumstances, qualifies the normative action of following the precedent as mandatory.…”

Section: Legal Norms Grounding Binding Precedentsmentioning

confidence: 99%

The Two Faces of Binding Precedents: A Hohfeldian Look

Arriagada

2024

Ratio Juris

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Taking into account one of the meanings of the expression binding precedent and stipulating a definition for that meaning, this article aims to contribute to the concept's structural characterization. By this I mean the effort to identify the legal norms on which the existence and functioning of binding precedents depend and to show that these norms constitute a group of Hohfeldian legal relations between the courts whose precedents must be followed, the courts that must follow them, and the individuals whose legal situations are as a result modified by the observance and the breach of those precedents.

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