The rule of precedent

Abstract

This paper explains the main features of the rule of precedent (RP). The RP —in lato sensu— is the rule that defines the legal operation of judicial precedents (PJ). It is possible that each legal order contains a contingent RP in stricto sensu to define the conditions of binding and mandatory PJ. About this matter, the RP carries out three principal functions: 1) to establish the conditions to identify PJ; 2) to fix the legal powers for create, overrule and apply the PJ, and 3) to define the way in which the PJ commands actions and the consequences of non-compliance. Based on distinction between binding and obligation, it is highlighted that sanctions are the contingent consequences of disobey RP and that nullity (or invalidity) is the necessary consequence of the non-compliance of the binding conditions defined by the RP.