文档介绍：The Role of Precedents in Mixed Jurisdictions: parative Analysis of Louisiana and the Philippines
Ryan McGonigle
Readers are reminded that this work is protected by copyright. While they are free to use the
ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any
form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the
source. Readers are permitted to make copies, electronically or printed, for personal and
classroom use.
Abstract
The modern trend of convergence between the legal systems of the civil- mon-law traditions offers a unique opportunity for mixed legal jurisdictions such as Louisiana and the Philippines. The flexibility of mixed jurisdictions is found in their ability to act as a ‘doctrinal sieve,’ straining out the inherent weaknesses of both parent traditions. This article aims at discovering the proper role of precedent (judge-made law) within the mixed or hybrid legal systems of Louisiana and the Philippines. By first setting out the historical and specific legal experiences of both jurisdictions, the question of whether the civilian concept of jurisprudence constante or mon-law theory of stare decisis obtains in our paradigmatic examples is answered, leaving room for the mixed category sui generis. By viewing our mixed jurisdictions through parative lens, this paper also paratists with the opportunity to bypass stumbling blocks and legal chauvinism and obtain vrai rapprochement.
I. Introduction
The question of whether mon-law doctrine of stare decisis obtains in Louisiana has been an oft-debated theme recurring throughout the nearly two centuries of Louisiana statehood. Since the beginning of the 20th century, however, a ‘bright-line rule’ on the role of precedent has been hard to draw. The problem has its roots in the interpretation of the proper role of precedent within a Code-based system It should be noted at the onset of this discussion that civil codes, such as