The Constitution is a formal source of law, because it gives rise to the primary foundations that place it above the powers of the State, forcing its operators to obey it. It also contains the essence of the political, legal and social order; therefore, it establishes the basic principles that must govern all the norms of conduct of the people and those that determine the structure and activity of the State. Difference Between Doctrine and Jurisprudence
But when enforcing the Constitution, we must have knowledge of certain fundamental concepts such as: law, jurisprudence and doctrine; since knowing this will allow us to better understand some things. In this case we will focus on studying the differences between doctrine and jurisprudence.
DOCTRINE Difference Between Doctrine and Jurisprudence
It is the set of judgments issued by jurists in their task of finding the legal truth. This set of opinions issued by legal scholars are manifested through books, magazines, articles; among others. It is reduced to the set of opinions that serve as a guide to exercise the right. It is never self-imposed, nor is it mandatory.
Many legislative reforms are due to doctrine, since it acts as a generating force of legal judgments, influences the conscience of legislators so that they understand the needs for reforms or the elaboration of a certain law.
Some affirm that jurisprudence has superiority over doctrine, because in practice, the content of the former is more binding and mandatory than the latter.
It is an important source of law. The word derives from the Latin juris ” right “, prudentia ” wisdom “. The current state of law is called jurisprudence, as reflected by the set of decisions that, in a given matter, are enshrined by the decisions of the courts. The judicial pronouncements of a higher court oblige the lower-ranking official and the parties involved in the conflict to comply with it.
It arises from the legal assessment that the judges make when knowing if the right has been well or badly applied according to the case that is submitted to them. This legal assessment is what leads the judge to a judicial decision, the foundations of which form a set of general principles product of a judicial experience. In practice, these jurisprudential arguments are taken into account by jurists to resolve future cases.
This set of decisions of a higher court has the essential function of ensuring the correct interpretation of the laws and of preserving the interpretive unity of the latter.
The unity of the jurisprudential decisions on the cases is forming a body of solutions that acquires a certain obligatory and binding character, first because it creates a precedent and second because identical solutions will be given to the same problems. This set of sentences is compiled month by month in an official publication called the Judicial Bulletin. These publications contribute to this source of the right to legal security for all citizens.
The jurisprudence is formed by the interpretations that the courts make of the law, when they specify its content, complete it or also modify it, attributing a different solution to the one that the legislator has wanted. She can fill the silence of what the law does not say.
It is a source of law because it generates principles, legal foundations in the circumstances determined in time and place in judicial decisions; interprets the law and goes beyond the horizons where the legislator cannot reach. It constitutes a living matter for the formation of legal science, since it is nourished by judicial experiences. In addition, the judge has to fill in the gaps that the legislator at the time of drafting the law did not foresee; so experience contributes to their training. Currently jurisprudence is called judicial law.