use of precedent in legal arguments

I am no lawyer, but I would tend to guess that IF precedents could effectively be used in the Dominican... erm, justice (?) system, there would be virtually NO crime one could be declared guilty of, since so many have managed to bend the "justice" in their favor for all sorts of offenses and crimes.


... J-D.

Of course, legal precedents ("jurisprudencia") are used all the time although the system is somewhat different from the one in common law countries.

Dominican courts are not subject to stare decisis and hence are free to interpret and apply the law as considered correct even if it means going against the interpretation given by the Supreme Court in a previous case.

Such a decision from a lower court, however, would very likely be overturned when appealed to the Supreme Court. In such an event, the case would be remanded to another Court of Appeals. If after this first review, the new Court of Appeals persists in its refusal to follow the recommendations of the Supreme Court, and assuming the Supreme Court still understands that its decision is not in accordance with the law, then a second overruling would be made by the Supreme Court. The second time a decision is reviewed by the Supreme Court, the receiving Court is obliged to abide by the Supreme Court's decision.

This system, which is the same one found in France and many other civil law countries, allows lower judges more independence than in the US and other common law countries, and gives them a chance to convince the Supreme Court to change precedent.

The way the system works in practice, lower courts follow Supreme Court precedents 99% of the time. The 1% are what makes being a lawyer interesting. In the last few years, for example, the Labor Court of Appeals of Santiago and the Labor Chamber of the Supreme Court had a huge fight regarding workers? rights: the first was extremely pro-worker, the latter more balanced. The Supreme Court was not moved from its position.

By the way, if your lawyer?s final briefs do not include citations of the relevant cases, you should seriously think about changing lawyers.