Conceptual possibility and historical argument regarding the study of precedent

Abstract

This article raises the possibility of studying the concept of precedent from a general perspective, which is viable from the analytical philosophy of law, but focuses on how this company also supports historical arguments. The thesis maintains that – regardless of the particular characteristics that any particular legal system possesses or of the cultural family to which it belongs– it is possible to identify certain necessary properties that are constant in the concept of precedent where it is presented, trying to make evident such properties. The analysis suggests that we may have built theories, evaluations, critiques and proposals around the precedent based on one of the many local notions we have about him, while his concept remains obscure. This affirmation demonstrates two needs: first, that we need to clarify the concept of the precedent, understand its meaning in order to be able to evaluate, criticize or adequately propose anything around this institution. Second, in order to elucidate the concept of the precedent, we need to eliminate the barriers and limitations thathave usually been imposed on studies on this subject and to open the way in other directions by attempting a type of research that allows us to analyze it from a general point of view.