From jurisprudence constante to stare decisis: the migration of the doctrine of precedent to civil law constitutionalism

Abstract

ABSTRACTThis article analyses the migration of the common law doctrine of precedent to civil law constitutionalism. Using the case study of Mexico and Colombia, it suggests how this doctrine should be tailored to the civil law context. Historically, the civil law tradition adhered to the doctrine of jurisprudence constante that grants relative persuasiveness to precedents, once they are reiterated. However, the trend is to consider single constitutional precedents as binding. Universalist judges are borrowing common law concepts to interpret precedents joining the global trend while particularists consider such migration a foreign imposition that distorts the civil law theory of sources. This article takes a dialogical approach and occupies a middle ground between universalist and particularist approaches. The doctrine of precedent should be adopted, but it must also be reconfigured considering three distinctive features of the civil law: (a) canonical rationes decidendi; (b) precedent overproduction; and (c) a fragmented judiciary.