Sistema Regional de Información
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This article discusses the limitations of conducting an analysis of the morality of public policies solely under the lens of domestic considerations. To make this point, I focus my attention on a very promising public policy recently proposed by Robert Hockett called the Open Labor Market Operations. The proposal seeks to recognize labor and wages as core parts of the economic system and, therefore, worthy of a special type of regulation. This regulation, he argues, is justified in economic and moral terms. The second type of justification concerns me. I contend that it is necessary to change the way of evaluating morality of a policy from a domestic to a global perspective, since implementing such a policy in a country like the United States could be detrimental to other parts of the world -like Mexico- due to current global market conditions.

This paper is the result of the analysis and discussion that took place at the Problema. Anuario de filosofía y teoría del derecho seminar entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges”. At this event, Flavia Carbonell and Rodrigo Camarena delivered a concise presentation on precedent in their respective countries (Chile and Mexico), addressing issues of a regulatorY, practical, theoretical and conceptual nature. Having witnessed both their arguments with keen interest and inspired by their presentations, I offer my points of comments on the most important and prominent aspects of their contributions.

This paper is the result of my participation in a discussion event of Problema. Anuario de filosofía y teoría del derecho entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges”. Several colleagues with a vast knowledge on the subject of judicial precedent participated in this seminar, which also delved into the widely debated aspects of judicial precedent focused on the case of Chile. The entire discussion aimed at proposing solutions, as well as shedding some light on some of its important aspects. Starting from such transcendental concepts as, rationality and argumentative use, it is possible to find certain problems arising from the improper use of the above concepts, which in turn leads us to stare decisis, a term that if used incorrectly may result in an act against the internal independence of judges.

This paper addresses the issue of the necessary or contingent nature of the rules governing the use of precedent in legal systems. The author argues that the rules governing the use of precedent in a broad sense (rules that define the legal operation of judicial precedent) are necessary in of legal systems. This paper identifies three different (exclusive and exhaustive) kinds of rules governing the use of precedent: a) binding rules governing the use of precedent, b) rules admitting the use of precedent and c) rules rejecting the use of precedent. It is concluded that the way the rules governing the use of precedent is established depends on each legal system. Even so, whether because of the conceptual reasons associated with the rules of competence or the centrality of the rule of law, when a legal system does not define the conditions to create, amend and apply judicial precedents, it can be said there are implicit rules rejecting the use of precedent.

Norberto Bobbio’s claim that it is not necessary to seek an absolute justification for human rights, but to protect them, is well known. This paper presents Bobbio’s position, shows its similarities and differences with that of authors like Maritain and Villey, and subjects it to a critical analysis. We conclude that Bobbio’s argument has several flaws, such as the genetic fallacy and the naturalistic fallacy. Furthermore, even his own ideas on how to protect human rights are debatable.

It filled me with pleasure to be asked by Problema editor-in-chief Sandra Gómora Juárez to lead a discussion on the theories and doctrine on precedent in our context alongside Prof. Marina Gascón Abellán. Besides the undeniable and recognized prestige of the Problema journal, there was also the possibility of working with Prof. Marina Gascón again and with Sandra Gómora for the first time. It was also an opportunity to discuss issues regarding precedent with old friends like Flavia Carbonell, Fabio Pulido and Silvia Zorzetto, and exchange opinions with new ones like Rodrigo Camarena.   On this occasion, I would like to comment specifically on the works of Prof. Fabio Pulido Ortiz and Prof. Silvia Zorzetto, both of which are of unquestionable quality. The article by Prof. Pulido Ortiz of the Universidad de la Sabana in Colombia is a work of analytical finesse and subtlety that discusses some fundamental problems of legal theory from the standpoint of the theory of precedent. Prof. Silvia Zorzetto from Università Statale di Milano has conducted an analytical and metalinguistic survey of the use of precedents in Italy, particularly at the Italian Sezioni Unite Civili della Corte di Cassazione. This work is priceless not only in terms of its value as a study of (internal) Italian legal culture, but also because the analysis can be generalized, at least in part, to explain how precedents are used in civil law systems.

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.

This paper is the result of the analysis and discussion that took place at the Problema. Anuario de filosofía y teoría del derecho seminar entitled “The Construction of Precedent in Civil Law: Debates, Concepts and Challenges.” At this event, Flavia Carbonell and Rodrigo Camarena delivered a concise presentation on precedent in their respective countries (Chile and Mexico), addressing issues of a regulatory, practical, theoretical and conceptual nature. Having witnessed both their arguments with keen interest and inspired by their presentations, I offer my points of view on the most important and prominent aspects of their contributions.