The civil procedure aims to protect rights. This purpose goes in a twofold direction—to decide the present case fairly and to give Law unity. As in Borges’s well-known tale, these two paths diverge and gradually develop their own rules. Each set out different ways of enabling a fair decision for the parties involved and guiding people in general through precedents. These procedures render a double discourse, speaking both to the concerned parties and, in the pretext of the case, to the legal system as well. These two ends sometimes run in parallel: when deciding a concrete case, there are reasons that, reconstructed logically and argumentatively, give rise to precedents. Sometimes, they interpenetrate; concrete cases depend on the solution of identical or similar issues to those already decided. Here, the ratio decidendi is the subject of debate throughout the process.

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On the Road

  • Daniel Mitidiero

摘要

The civil procedure aims to protect rights. This purpose goes in a twofold direction—to decide the present case fairly and to give Law unity. As in Borges’s well-known tale, these two paths diverge and gradually develop their own rules. Each set out different ways of enabling a fair decision for the parties involved and guiding people in general through precedents. These procedures render a double discourse, speaking both to the concerned parties and, in the pretext of the case, to the legal system as well. These two ends sometimes run in parallel: when deciding a concrete case, there are reasons that, reconstructed logically and argumentatively, give rise to precedents. Sometimes, they interpenetrate; concrete cases depend on the solution of identical or similar issues to those already decided. Here, the ratio decidendi is the subject of debate throughout the process.