Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is to identify the possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates.

This paper addresses the issue of the necessary or contingent nature of the rules governing the use of precedent. The author argues that the rules governing the use of precedent in lato sensu (the rules that define the legal operation of judicial precedent) is a necessary rule of legal systems. However, legal systems have 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. The main conclusion is that whether for conceptual reasons of conferring power or for the centrality of the rule of law in current legal systems, when a legal system does not define the legal operation of judicial precedents, it can be said say there are (implicit) rules rejecting the use of precedent.

This paper explores the systemic complexity of speaking of a moral crisis as applied in contemporary society, especially in Latin America, which requires an interdisciplinary approach to address the issue. Four aspects point to a systemic complexity of the moral crisis. First, as a normative system based on the desire for a better society, morality will never be satisfied with the society in which it is framed, which leads to permanent discontent. Secondly, since a moral crisis indicates that there is no connection between what one actually has and what one wants, the desired connection implies that several systemic variables need to be interconnected for moral development to truly take place (following Kohlbert’s theory of moral development with a few adjustments). Such variables are more complex than what the political system believes or wants to make people believe. Thirdly, declaring the existence of a moral crisis and, therefore, the need for actions geared towards resolving it does not imply a consensus on what moral standards should be accepted or which course of action should be taken to achieve this end. To begin with, it is relatively common that the agents accused of causing the current “moral crisis of society and law” in contemporary societies are usually the agents who, as free riders, decry the very same crisis. And fourth, a systemic change that leads to a jump in moral development must be considerably strong, and the measures that are usually proposed to cope with it, besides not being very clear, are usually inadequate or naïve (such as calling for the creation or strengthening of ethics as a subject in the curricula for future citizens in general and lawyers in particular). Lastly, a proposal based on this systemic and interdisciplinary diagnosis will be put forward to enhance the possible responses to face the crisis; otherwise, what has been rejected will remain in place.

This paper deals with the contributions of the Supreme Court to the democratization of the Mexican political system in the years between 1995 and 2011. It presents the results of a broad research in which I analyzed relevant cases and conducted in-depth interviews with chief justices, researchers and politicians. Although judicial politics has emphasized the role of the judiciary within the political systems, I am interested in studying whether or not the Mexican Supreme Court has contributed to democratic transition from a legal philosophy approach. My argument is that if judges adjudicate based on theories of law, and if theories of law can affect democracy, therefore, courts’ sentences and their philosophical core may have an impact on democracy. This could be of relevance because it operationalizes philosophical categories. Such correlation between theories of law and democracy is reflected on the interpretation used by the Supreme Court. The major conclusion is that when the Supreme Court started to use new forms of argumentation related to natural law, it happened to be a contribution to democracy.

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 work was conceived as a tribute to Rolando Tamayo y Salmorán and examines some of his main contributions to legal philosophy. With this in mind, the text begins with an overview of the state of legal philosophy in Mexico and Tamayo’s environment. The essay then focuses on exploring two aspects of his work. The first is the importance of knowing the origin of the science of law, the Jurisprudentia, the emergence of its concepts, its Roman foundations and the epistemic tenets taken from the Greeks. The second is the definition of law as a behavior reinforcement technique that is found in every society. The concept of rule as a basic tool of legal technique is briefly explained.

Kantian moral agency has served as the theoretical basis for moral and legal foundations of the autonomy of the will. However, neuroscience has shown that Kantian rational agency is not a good fit for contemporary subjects and thus the evidence leads us to wonder about its repercussions in the field of law. This paper begins by noting the differences between Kantian agency and what neuroscientific studies have found. It goes on to discuss whether this discrepancy could pose a problem for law and the reasons behind it.