Precedents about facts

Abstract

The present paper begins answering affirmatively to the question about if it is possible to have precedents in the subject of facts, and then tries to establish what types of precedents may exist in the matter of facts. To do this, firstly, the fundamental notions in relation to precedents are clarified: stare decisis, ratio decidendi (and obiter dicta) and precedent. Secondly, it explains why it is a bad idea to address the issue of precedents through a normative doctrine of the sources of law. Thirdly, an ambiguity that affects the expression “proven facts” is dissolved, and it clarifies in what sense may exist precedent in fact. Fourthly, it distinguishes between precedents in the subject of facts in the strict sense, and precedents of evidence, introducing some other distinctions to differentiate between several types of precedent. Fifthly, a brief attention is drawn to the limits of precedent as a strategy to increase legal certainty. It concludes with a few considerations.