Equality before the Law and Precedent
Abstract:The paper explores the nature of the principle of equality before the law, understood as the formal justice criterion that like cases must be treated alike, as a rationale of the rule or system of precedent. The first part discusses and rejects Kelsen's thesis on the conceptual insignificance of that principle in the sphere of the application of the law, identified uniquely with a logical criterion related to generality of rules and simple legality. The second part argues for the ethical relevance of equality before the law as a reason for a legal system to have a rule of defeasibly binding precedent.
Document Type: Research Article
Affiliations: Autonomous University of Madrid, Faculty of Law, 28049 Cantoblanco, (Madrid), Spain
Publication date: December 1, 1997