Chapter 1 Introduction 1
Chapter 2 Roman lurisprudentia as Prudentia luris 7
1. Introduction to Roman Law, Especially Classical Law 7
2. Roman lurisprudentia as Science of Law, as Distinct from its Modern Conception as Jurisprudenz in German and Jurisprudence in Anglosaxon Authors 9
3. Priority of lurisprudentia over Law in Roman Law 10
4. Etymology of the Term lurisprudentia as prudentia Applied to Law in a Practical Manner; Cognitive and Scientific Differences Regarding Scientia and Sapientia 10
5. Decisive Creative Role in Roman lurisprudentia - Neither via Legislator Nor Judge - of Two Bodies: Jurisconsults and Praetor 11
6. Origin of Roman lurisprudentia in the College of Pontiffs, as a "Secret" Concept, and Subsequent Conversion into "Lay" and "Public" Jurisprudence 12
7. Value of lurisprudentia and lus Publicae Respondendi: Original Scope and Reduction by Augustus 12
8. Grandeur of Roman lurisprudentia, Owing to Casuistics, Inductiveness and Intuitiveness; Value of Science of Law Today as a Theoretical-Doctrinal Concept 14
9. Value of lurisprudentia in Roman Law: The Source of Law? 15
10. Why lurisprudentia and not luriscientia? 16
11. Roman Prudentia 18
Chapter 3 The Anglosaxon Precedent 19
1. The Anglosaxon System of Sources 19
1.1. The Term "Anglosaxon" compared with "English" or "British" 19
1.2. The English System of Sources 22
1.2.1. List and Hierarchy of English Sources of Law 24
A. Judge-made Law 24
B. Statute Law 27
1.2.2. The Stare Decisis 31
1.2.3. Distinctions 33
1.2.4. The Ratio Decidendi 34
1.2.5. Declarative and Constitutive Theories of the Nature of Common Law 36
1.2.6. Types of Precedent 37
1.2.7. Hierarchy of Courts 38
1.2.8. Publication of Precedents;The Law Reporting System 39
1.3. The North American System of Sources 40
1.4. The Scottish System of Sources 43
2. Distinction between "Jurisprudence" - Science of Law - and "Case Law"- a Judicial Phenomenon 44
3. Differences between Common Law and Continental Legal Systems 45
3.1. The Distinct Influence of Roman Law 47
3.2. The Influence of Legal Codes on the Continent compared with Case Law Character of the Anglosaxon System 48
3.3. The Rationalist, Rule-based and Formalistic Conception of the Continental Systems Compared with Anglosaxon Realism and Empiricism 49
3.4. The Evolution of and Respect for Tradition in the Anglosaxon System Compared with the Continental Revolutions 50
3.5. A "Procedural" Law compared with a Law of "Rules" 50
3.6. A Social Organisation Model Based on Individual Initiative and Free Enterprise Compared with the Interventionist an+d State-centred Continental Model 50
3.7. An Open and Incomplete Law Compared with the Plenitude, Completeness and Closed Nature of the Continental Systems 51
3.8. A Casuistic System Compared with the Pre-established and Preconceived a Priori Ideas of the Continental Systems; An Inorganic Doctrine without Codes; The Case Method 51
3.9. Disregard of the Separation between Public and Private Law - a Key Issue in Continental Law 52
4. Main Differences between Anglosaxon Precedent and Continental Case Law 52
4.1. Provenance of Precedent from any Jurisdictional Body regardless of Hierarchical Rank 52
4.2. One Single Ruling sufficient for Judicial Precedent 53
4.3. Precedent as the Main Source of Anglosaxon Law 53
4.4. The System of Dispersed Jurisdiction Compared with Concentrated Jurisdiction 53
5. Current Harmonisation of Statute Law and Case Law Systems 54
Chapter 4 Continental Case Law 57
1. Concept and Main Requirements of Case Law in the Spanish Legal System 57
1.1. The Provenance of Case Law 57
1.1.1. The Supreme Court; Appeal to the Highest Instance (Appeal for Cassation) 60
A. History of the Supreme Court and Appeal to the Highest Instance (Appeal for Cassation) 60
B. Main Purpose of Cassation 61
C. The Various Chambers of the Supreme Court 61
D. Evolution of Concept of "Legal Doctrine" as a Basis for Cassation; Effect of the Reform of the Rules of Civil Procedure of 2000 61
1.1.2. The Constitutional Court-Main Functions 64
A. Introduction: the North American Model of Dispersed Jurisdiction Compared with the Austrian Model of Concentrated Jurisdiction 64
B. Nature of the Spanish Constitutional Court 67
a. Jurisdictional Nature 67
b. Political Nature 68
c. "Mixed" Special, Sui Generis and Complex Nature 68
C. Relations between the Constitutional Court and the Supreme Court and other Judicial Authorities: A Question of Hierarchy or Jurisdiction? 69
D. Place Occupied by Case Law Established by Constitutional Court Rulings and Orders 70
1.1.3. The Higher Courts of Justice of the Autonomous Communities;Territorial Jurisdiction 74
1.1.4. The European Courts 77
A. The European Court of Human Rights of Strasbourg 77
B. The European Court of Justice of Luxembourg 78
C. The International Criminal Court 79
1.1.5. Value of Rulings by the General Department of Registers and Notaries Public 81
1.2. Reiteration of Rulings 82
1.3. Ratio Decidendi Compared with Obiter Dicta; The Ratio and Similar Concepts in Law 82
1.3.1. The De Facto Assumption, Legal Consequence and Ratio as Elements of the Law; Historical Development of the Concept of Ratio 83
A. The Greek Logos 85
B. Appearance of the Term Ratio in Roman Law with a Different Meaning: The Arithmetical and Geometrical Ratio of Mathematical Content - Proportionality 85
C. The Middle Ages 85
a. The Glossators and Devotion to the Letter and Literal Interpretation 86
b. The Post-glossators or Commentators and Use of Logical Interpretation in Search of the Ratio 86
1.3.2. The Causa Legis in Transactions compared with the Ratio Legis in Law 87
1.3.3. The Ocassio Legis Compared with the Ratio Legis 87
1.3.4. The Anima Legis Compared with the Animus 87
1.3.5. The Ratio Legis Compared with the Ratio Legislatoris 88
1.3.6. The "Historical Ratio" Compared with the "Presumed or Hypothetical Ratio" 90
1.3.7. The Corpus Compared with the Ratio and the "Criteria for Interpretation" 91
1.3.8. The Opinio luris in Custom 91
1.3.9. The Ratio in Legal Argumentation; Types 97
A. The Eadem Ratio in Analogy 98
B. The Major Ratio in the A Fortiori Argument 98
C. The Minor or Contrary Ratio in the A Contrario Argument 99
1.3.10. The Ratio Decidendi of the Judgement Compared with the Obiter Dicta; Fundamental Points of Law 99
2. The Functions of Case Law 100
2.1. The Interpretation of Law 100
2.2. The Application of Law 101
2.3. The Integration of Law 102
2.4. The "Limited" and "Derived" Creative Function of Case Law 103
2.5. Other Functions 104
2.5.1. The Function of Decantation and Application of the General Principles of Law 104
2.5.2. The Updating Function of Law 105
2.5.3. The Function of Forming and Creating Legal Concepts 105
3. Is Case Law, Especially that of the Supreme Court, a Source of Law in the Spanish Legal System? 105
3.1. Arguments in Favour of it Being a Source 107
3.1.1. The Evolution of the Principle of Separation of Powers 107
3.1.2. Kelsen's "Stufenbau"Theory and Hart's "Open Texture" Theory; Problems Resolving the Improvement of Strict Legal Positivism and the Conception of Law as a Legal System 107
3.1.3. The Infringement of Case Law as Grounds for Appeal to the Highest Instance (Appeal for Cassation) 108
3.1.4. Association of Case Law with Other Sources of Law 108
A. Association with Custom, i.e. Judicial Practice - Usus Fori 109
B. Association with the General Principles of Law, as a Source of Said Principles 110
C. Association with Legislation 110
a. Case Law as "Special", "Individual" or "Specific" Law 111
b. The Legislator's Tacit Approval via a posteriori "Reception" or Prior "Delegation" of the Case Law Rule 112
c. The Legislator's Express Approval in the Additional Provisions of the Civil Code, by reference to the Comision de Codification (Council of Law Reporting) 112
3.1.5. The New Value of Case Law due to Progressive Importance of "Agreements Adopted by the Non-jurisdictional Meetings of the Supreme Court" 113
3.2. Arguments against it Being a Source 115
3.2.1. A Strict Interpretation of the Principle of the Separation of Powers and the Judge's Position 115
3.2.2. The General and Abstract Nature of Statute Law and the Specific Area of Case Law Maxims for Isolated Cases 117
3.2.3. The Imperative Nature of Statute Law as a Source of Law compared with the Merely Persuasive, Non-binding and Merely Authoritative Value of Case Law 118
3.2.4. Inclination of Legislation in Principle towards Permanence, Stability and Coherence compared with Freedom to Vary Doctrine and Contradiction in Case Law 118
3.2.5. The Presumption of Res Judicata Compared with the Merely Exemplary Value of Case Law for all Cases Comparable with the One at Issue 119
3.2.6. The Creation of Objective Law by Legislation Compared with the Award of Subjective Rights by Case Law 120
3.2.7. The Requirements of Legal Certainty 120
3.2.8. The Originating Value of Legislation Compared with the Borrowing Nature of Case Law 121
3.2.9. The Creative Nature of Legislation Compared with the Function of Mere Interpretation, Application and Integration of Case Law 121
3.3. Case Law and Equity 122
3.4. Analogy and Resultant Maxims of Decision 131
3.5. The Consideration of Case Law as an Improper, Material Source or Source of Knowledge of Law: "Legislation Reigns and Case Law Governs" 134
3.6. The "Sources-Argument" Theory 136
3.6.1. The Ab ExempIo Argument 137
3.6.2. The Authority Argument 137
3.6.3. The Principle of Formal Justice in Coordination with the Principle of Inertia 140
3.6.4. Respect for Tradition 141
3.6.5. The Pragmatic Argument 141
3.7. The Models of Judge: Hercules, Jupiter and Hermes 141
3.8. Formalism and the Anti-formalist Revolt, with Particular Reference to Case Law 143
3.8.1. French Legal Anti-Formalism 145
A. The French Scientific School of Francois Geny 145
B. The French Sociological School of Leon Duguit 146
3.8.2. German Conceptual Anti-Formalism 147
A. The Jurisprudence of Interests of Ihering and Philipp Heck 147
B. The Free School of Law of Hermann Kantorowicz and Eugen Ehrlich 150
3.8.3. Jurisprudential Anti-formalism: The North American Sociological Jurisprudence of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo; North American Realism 151
3.8.4. Other Anti-formalist Trends 153
4. Changes in Case Law, Especially by the Supreme Court 157
4.1. Can Case Law Be Changed? 157
4.2. Is it Advisable to Change Case Law? 157
4.3. If there Is a Change of Case Law, Which Prevails? 158
4.3.1. The Oldest Case Law 158
4.3.2. The Most Recent Case Law 159
4.3.3. A Third, Distinct Line of Case Law 159
5. Main Rules on the Sources of Law and Case Law in the Spanish Legal System 160
5.1. The Pre-1978 Situation 160
5.1.1. The Civil Code 160
A. Pre-reform of the Preliminary Title of 31 May 1974, article 6 160
B. Post-reform of the Preliminary Title of 31 May 1974, article 1.6 161
a. The Systematic Argument or Sedes Materiae 163
b. The Literal Argument and the Exhaustive List of article 1.1 of the Civil Code 163
c. Case Law "Complements" but does not "Complete" the Legal System 163
d. The Expression "Certain Legal Transcendence" in Reference to Case Law in the Preamble of the 1974 Reform of the Preliminary Title of the Civil Code 164
e. The Express Recognition of "Analogy" Post-reform of the Preliminary Title of the Civil Code 165
5.1.2. The Rules of Civil Procedure; the Reform of 2000 165
5.2. The Post-1978 Situation 166
5.2.1. Spanish Constitution of 1978 and its Main New Contributions on the Matter 167
5.2.2. The Organic Law regarding the Judiciary 169
6. Case Law in Other Continental Legal Systems 170
6.1. German Law 170
6.2. The Swiss Civil Code and the Legislator Judge 172
Bibliography 173
Index 211