We should all know, even if only in a general way, what we mean by doctrine and what we mean by jurisprudence. Both affect our lives and can be useful to us in the case of litigation. Both jurisprudence and doctrine could be called, to understand each other, indirect or complementary sources of regulations and laws.
This is so because the legal system establishes that in order to interpret and apply the laws they must be complemented by jurisprudence and doctrine. However, we must take into account that in Anglo- Saxon law and in Spanish, when we talk about jurisprudence, we are not talking about the same thing.
For the Americans and the English and all those who are governed by common law or Common Law, jurisprudence is a source of law. Thus, more than creating general laws to regulate the different situations that can occur in the life of the citizen, what they do is give a series of general principles that the judge must apply to each case, creating a sentence that will create jurisprudence. That is why in movies it is common to hear lawyers cite previous cases or that there is no jurisprudence on a case because that situation has not been experienced before.
However, in the Spanish case, jurisprudence is the set of sentences issued by the Constitutional Court, Supreme Court, Superior Courts of Justice of the Autonomous Communities.
Do not confuse jurisprudence with doctrine, which is why we are going to give you some keys to know how to differentiate them.
What do you need to differentiate between doctrine and jurisprudence?
- Paper.
- Ballpoint.
- Ruler
Instructions to differentiate between doctrine and jurisprudence
- In order to see at a glance and thus know how to differentiate jurisprudence and doctrine, we propose you to carry out this scheme that will help you in this task. To get started: Take a piece of paper, a ruler, and a pen or pencil.
- Draw a vertical line that divides the sheet into two columns.
- On the left side write jurisprudence and on the right doctrine.
- In the jurisprudence section we will write the following:
- Judgments handed down by courts and tribunals.
- It is a complementary element that a judge may or may not take into account.
- But for them to be taken into account, there are two sentences that are the same when resolving the same type of case.
- In the doctrine column we will write the following:
- They are comments, studies, analyzes made by experts.
- These experts are usually professors, professors.
- They are opinions.
- It is even more complementary than jurisprudence.
- Less taken into account.
- Being an expert, he does not have the authority to revoke a sentence.
- They are published in articles, books, specialized magazines…
- Its importance will depend on the relevance of the author. This has to be a recognized author.
- They study the legislation and propose changes to it in order to improve it.
Tips to differentiate between doctrine and jurisprudence
- In practice, the jurisprudence has been much expanded. Lawyers also tend to take into account as jurisprudence the sentences handed down by Provincial Courts and Courts of First Instance.
- The principle of judicial independence must be taken into account, that is, that each judge is independent to issue a sentence without taking into account that issued by another judge.
- It should be remembered that both jurisprudence and doctrine are sources of law but that it is not mandatory to resort to them or comply with what they indicate. Both serve as a reference in those cases in which there is a legal vacuum or in which it is desired to complement the existing laws. But remember, the judge does not have to take it into account due to that judicial independence that we mentioned before. In any case, they serve to interpret the law in a specific case.
- All the differences that we have indicated in our roadmap are applied to the Spanish case. At the international level this changes since the inclusion or not as a right source depending on the country in question.