{"title":"The Ratio Decidendi through Mexican Lens","authors":"Rodrigo Camarena González","doi":"10.22201/iij.24487937e.2022.16.5.17579","DOIUrl":null,"url":null,"abstract":"In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is to identify the possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates.","PeriodicalId":53459,"journal":{"name":"Problema","volume":"141 1","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2022-12-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Problema","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.22201/iij.24487937e.2022.16.5.17579","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q4","JCRName":"Social Sciences","Score":null,"Total":0}
引用次数: 0
Abstract
In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is to identify the possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates.
期刊介绍:
The Journal Problema is a yearbook of Philosophy and Theory of Law of the Institute of Legal Research of the UNAM. The objective of the journal is to publish submissions in Spanish and English, and is aimed at professors, students and professionals interested in various contemporary issues of political, legal and moral philosophy. That is why the Editorial Committee is constituted by researchers from the Institute of Legal Research experts in the field. It is important to note that the Journal Problema has a process of judgment under the double-blind principle, which is carried out by the members of the Editorial Board, which is constituted by national and international researchers from various institutions.