The jurisprudence is the set of sentences issued by the courts in the control of the application of the laws when they resolve specific cases.
In a broad sense, jurisprudence is understood as the entire set of judgments issued by any court that helps to interpret the rules and apply the regulations when they resolve a matter.
Judges and courts are responsible for interpreting laws so that they can apply the law most effectively when passing sentences. Laws are previously written norms to which judges must turn as the first source of law. However, sometimes the interpretation of the written standard is not evident or there are legal loopholes, in which there is no legislation on the subject.
In cases where the norm is not evident or there is a legal vacuum, the jurisprudence consists of going to sentences of similar cases taken in the past by other courts, to verify how it was resolved. In this way you can solve in a similar way and thus achieve unification in the interpretation of the law.
But not all courts can make judgments that set precedent and create jurisprudence. Generally, only higher courts can create jurisprudence.
Although, as we will see later, there is a great difference between countries with respect to jurisprudence. We can divide this difference between countries into two large blocks when applying jurisprudence, mainly those based on Anglo-Saxon law (common law) and those based on continental law (civil law).
Functions of jurisprudence
Jurisprudence has mainly two common functions:
- Complementing the law: One of the functions of jurisprudence is to complement the legal system when interpreting and applying the law, filling any gaps that may exist in the legal regulations.
- Unifying principle: Another function is to achieve unification in the interpretation of the law so as not to provoke situations of unjustified inequality. Pretend to maintain a single criterion to interpret and apply the law.
Furthermore, in Anglo-Saxon countries, the function of jurisprudence goes further and has a main function:
- It is a direct source of law: In Anglo-Saxon countries, judges and courts must base their decisions on previous judgments on similar cases, for which they must carry out a study of precedents.
In some countries the role of jurisprudence goes further and is a source of law.
Characteristics of jurisprudence
Some of the characteristics of the jurisprudence are:
- Explanatory: Clarifies the law when it is not clear and fixes its scope.
- Supplementary: Provides the solution when it is not provided for by law.
- Concrete or specific: It adapts the general law to the specific or concrete cases that are presented to it.
Effects of jurisprudence
The effects of the jurisprudence depend on the country, the subject matter of the case or the specific facts, so there are no uniform effects of the jurisprudence.
Difference of jurisprudence in continental law and in Anglo-Saxon law
The main difference is that jurisprudence is a direct source of law for countries based on Anglo-Saxon law. In these countries, when a court makes a decision it is said to set a precedent. Therefore, it must be respected for similar cases by the courts, not being able to deviate from that interpretation.
In contrast, in countries based on continental law, jurisprudence is not a direct source of law, but rather an element that complements the sources of law, or an indirect source of law.
Continental legal system or Roman law
In most of the countries that are within the continental legal system (most of Europe and Latin America), jurisprudence is not a source of law.
The jurisprudence unifies doctrine and fills legal gaps but does not generate norms. In these systems the sources of law are the law, customs and general principles of law.
In Spain, the only court that issues rulings that unify doctrine, that is, that clarify discrepancies in the application of the law and interpret legal norms, is the Supreme Court. Therefore, in the strict sense, jurisprudence in Spain consists of the judgments issued by the Supreme Court.
The jurisprudence emanating from the Superior Court, in the case of Spain, the Supreme Court, has an influence on the lower bodies that must abide by the way of interpreting and applying the law issued by the Superior Court.
These judgments have binding force that will oblige the other jurisdictional bodies to follow what is indicated in their judgments.
Common Law System
In the countries of Anglo-Saxon law, jurisprudence has the function of being a source of law. This means that not only the codes that contain the norms that can be reviewed in advance by citizens are part of the legal regulation of the country.
What the judges dictate in a specific case generate an obligation to be fulfilled by the courts.
This jurisprudence is known as the case law, and it means that once a court makes a decision, it sets a precedent and must be respected for similar cases by the courts, not being able to deviate from that interpretation.
In other systems of law that do not follow Anglo-Saxon law, jurisprudence may change.