La jurisprudencia como fuente de derecho

una perspectiva hermenéutica

Abstract

The paper addresses the way some contemporary German legal theories account for the sources of legal doctrine, namely, with reference to the character and the role of judicial law. By moving from the traditional view, according to which judicial law is not a formal legal source, part of the German doctrine in the 1960s (J. Esser) highlights the fidelity to precedents in civil law systems and clearly acknowledges (M. Kriele) that as a matter of fact judicial precedents have a binding force, very similar to the role they have within common law systems.

Those changes in legal doctrine naturally produce a strong change in law at all levels, with a new wave among domestic, supranational and global law. In the face of legal pluralism, the interpreter's role and responsibilities increase. Meanwhile, the dimension and the relevance of judicial decisions become weaker. Law makes transcultural communication and coexistence among foreigners possible. Nevertheless, one should not forget thatjudicial law cannot contain the whole legal reality. Nowadays change in the law is shaped by more than its "official" actors.