Resumo

AGUERO-SANJUAN, Sebastián. A relative effect of judgements or case-law as a source of law? A proposal for reconciliation to unresolved tension. Bol. Mex. Der. Comp. [online]. 2023, vol.56, n.168, pp.27-55.  Epub 29-Nov-2024. ISSN 2448-4873.  https://doi.org/10.22201/iij.24484873e.2023.168.18881.

In the Chilean legal community, two ideas are widespread that are in tension with each other. On the one hand, on the basis of the Civil Code of 1857, in particular on the basis of its third article, a relative effect of judgements is recognised, i.e. the binding effect of court decisions only relates to the grounds on which they are based. On the other hand, in legal practise, case law is recognised as a source of law, i.e. it is accepted that the decisions of the most important courts are binding beyond the parties involved in the proceedings. In view of this unresolved tension, the present thesis pursues two objectives. Firstly, on the basis of an overview of Chilean doctrine and case-law, to identify the tension and the reasons for its emergence. Secondly, to formulate a proposal that reconciles both ideas by specifying the object of the controversy, limiting the scope of the jurisprudence and suggesting what kind of normative (binding) character the decisions of the most important courts should have.

Palavras-chave : case-law; a relative effect of judgements; legal language.

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