JUDICIAL INDEPENDENCE VS. BINDING PRECEDENT: A MISLEADING OBJECTION

Abstract

This paper revisits the notion of judicial independence and  its relationship with binding precedent in Ibero-America, with special
emphasis on the Argentinian and Brazilian legal systems. It evidences the prevalence of an idea of judicial independence as a guarantee for the judge instead of a guarantee for the parties, and states that such misconception causes an unfounded opposition to precedent. The work proposes a notion of judicial independence developed from the analysis of its essence and purpose. That proposition is inspired by principles contained in the “Código Modelo Iberoamericano de Ética Judicial” and the “Estatuto del Juez Iberoamericano”, both develo - ped during the Ibero-American Judicial Summit. Those documents  put parties in the core of the judicial process and conceives them as  the reason for judicial independence. Such perspective removes any  opposition between judicial independence and respect for what it has been decided in similar previous cases.