It is jurisdictional in scope, so it is linked to the decisions made in its area of origin. It is considered a indirect source of law that complements the law, custom.
Origin of jurisprudence
Jurisprudence has its origin in Roman Law and was equivalent to knowledge of what is just and unjust. In the Anglo-Saxon sphere, its origins are studied in the period of the king of England 'William, the conqueror'. He was responsible for interpreting and applying the law. So that it could reach all corners of the kingdom, he distributed judges throughout the territory who unified their orders.
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Currently, it is conceived as the doctrine established by the Superior Courts when interpreting and applying the law in their areas of knowledge. The set of sentences ruled by the official body consolidates Spanish jurisprudence.
Characteristics of jurisprudence
- It constitutes a complement to the legal system when the doctrine is established repeatedly when applying the law, customs and principles of law.
- It is formed from decisions and rulings of a judge who sets precedent for the future. It becomes a constant and uniform criterion that applies to identical or analogous cases.
- The empowered bodies to establish jurisprudence are contemplated in the Constitution, for example, the supreme court.
- HE binds each nation and legal traditions, so it may vary from one State to another.
- Is a formal and indirect source of law, in the sense that it will be consulted by judges for their resolutions, without creating general legal norms.
Who can establish jurisprudence in Spain?
Has the capacity to establish jurisprudence in Spanish territory:
The Supreme Court
As established by the Spanish Civil Code, jurisprudence is established by the Supreme Court by conferring certainty on its criteria. capacity for normative transcendence.
Its ruling is not a norm per se, but it acquires a special value and must be respected and followed by the rest of the courts.
6. Jurisprudence will complement the legal system with the doctrine that the Supreme Court repeatedly establishes when interpreting and applying the law, custom and general principles of law.
Article 1.6 of the Civil Code
To establish jurisprudence and for it to become binding, it is necessary to comply with a minimum series of requirements. Thus, according to the Supreme Court, jurisprudence exists when:
- The legal interpretation assumed by the Supreme Court is maintained on similar issues.
- That remains unchanged with the aim of guaranteeing the security of legal relations.
- that they exist at least two identical or analogous failures verifiably. That is to say, quoting isolated phrases from a sentence is not enough for this.
The Constitutional Court
The decisions of the constitutional Court They have the character of jurisprudence in regards to the protection resources. Its action consists of resolving issues that affect fundamental rights in administrative or judicial procedures.
Only in these cases is it granted to the constitutional Court the power to establish jurisprudence. The ordinary courts must abide by the resolutions of the Constitutional Court and its criteria in the situations of vulnerability of fundamental rights.
It is the organ whose purpose is interpret constitutional norms Spanish and ensure their application. No lower court or judge has the power to contradict the ruling of the Constitutional Court.
Other types of jurisprudence
It is possible to classify jurisprudence in different ways. For example, according to your attitude towards the current law can be distinguished:
- Plenary jurisprudence: It comes from a chamber or court with the participation of all the judges that make it up.
- Repealing jurisprudence: invalidates an act or legislation by considering it inapplicable to the facts.
- Restrictive jurisprudence: The interpretation made by the law causes the possibility of application to the fact under analysis to be restricted or limited.
- Distorting jurisprudence: it sits to apply in cases that differ from the original nature of the law.
- Against Legem: Its issuance leads to results that do not contradict the laws established for those cases. Its presence is not possible in all states.
Another way of classification is depending on the state in which you sit and apply. Also, it could be grouped by repeated sentences that complement the legal system in the different fields of law.
- Jurisprudence in economic crimes
- Civil jurisprudence
Failure to comply with jurisprudence
It is possible that a ruling will be presented that does not respect the jurisprudence established in a Constitutional Court. In these cases, there is the possibility of correcting through resources ordinary.
If the ordinary courts do not resolve, there is still a last resort which consists of the presentation of an appeal for constitutional protection.
The failure to comply with a High Court ruling HE complaint with ordinary resources as an improper solution. If ordinary courts do not apply jurisprudence, this can be considered a violation of the principle of equality before the law.
Likewise, when it is appropriate to file an appeal for protection in the Supreme Court, this is presented in a limited manner to the case of the appeal of cassation interest. The truth is that the organizations that established jurisprudence have the last word.
Importance of jurisprudence in Spanish justice
Jurisprudence is, perhaps, one of the most heard concepts in the field of current law. Its value among lawyers and judges reaches a truly high magnitude and is open to public consultation.
In Spain, it is an indirect source of law with a strong impact on justice and that tends to equalize rights.
It is true that the first source is constituted by the entire legal system. Without embargo, on many occasions the interpretation of laws can be ambiguous. It is then when jurisprudence becomes a determining factor for the resolution of the cases.
The jurisprudence in the Spanish justice system complies with the objective of unifying the criteria for legal solution. It is a way to guarantee the equality of all subjects in a similar situation before the law and its application in analogous cases.
Most jurists and lawyers consult important rulings, which establish a kind of line to follow in certain matters. Above all, the one generated by the Supreme Court.