About This Book
This book of professor Emilio J. Urbina Mendoza, which is part of the thematic publication "Analysis and Research in Law of Professor Emilio J. Urbina Mendoza,” is entirely dedicated to the study of the methods for the organization of jurisprudential doctrines in civil law systems. Faced with a continental legal system increasingly influenced by the value of precedents, this work analyzes the details of the new interrelation that emerged at the end of the twentieth century.
The book is divided into three parts where the crossroads of law between two hermeneutics is scrutinized.
In the first part, the author reviews the foundations of the methods, formulating a valid question for these times: Jurisprudential law or jurisprudence of Law?. The theory of the "koiné" is transferred from the theory of law to legal hermeneutics and the disruption that this generates between the judicial components of civil law and common law is analyzed. In addition, in this first part, the so-called "hermeneutical powers of the judge" are systematized, which together with his procedural powers; they shape jurisprudence and its way of reading and constructing the Law.
The second part of the work reviews the conceptual universe of jurisprudential doctrine and precedent, both very analogous concepts, but with clear differences according to each legal system. These concepts are addressed in Venezuela very lightly, above all, by the Supreme Court of Justice in its different Chambers that make it up, which has abused the "binding" nature of said jurisprudential doctrine. At this point, institutions such as the "intrinsic jurisprudential norm", "stare decisis", the organization and "pedigree" of the precedent, as well as the extension and content of the term "jurisprudential authority" are addressed.
The third part of the research systematizes and exposes, in didactic form, the three methods of organization of jurisprudential doctrines, namely: 1. The method of argument organization, 2. The cliometric method; and, 3. The logical-thematic systematization method. Each of these techniques are thoroughly reviewed in an operational way to provide the reader with effective tools for the organization of jurisprudence, whatever the branch of law that is worked. Finally, it establishes a balance and reflects on the way in which obiter dictum is improperly used in decisions of constitutional justice.
