The Nature and Authority of Precedent

The Nature and Authority of Precedent

Neil Duxbury

Language: English

Pages: 206

ISBN: 0521713366

Format: PDF / Kindle (mobi) / ePub


Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.

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sanctions. ‘ ‘‘Sanctions’’ are . . . required’ in all apart from the smallest, most closely-knit societies, he argued, ‘not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not. To obey, without this, would be to risk going to the wall.’ CL, 198. CL, 57. CL, 98. See, generally, Scott J. Shapiro, ‘What is the Internal Point of View?’ (2006) 75 Fordham L. Rev. 1157–70. CL, 116. 72 Ibid. CL, 57. For salutary

decision for its time ‘the earlier judge would not have decided as he or she did, had he or she been operating in the conditions of today’. Lionel Smith, ‘The Rationality of Tradition’, in Properties of Law: Essays in Honour of Jim Harris, ed. T. Endicott, J. Getzler and E. Peel (Oxford: Oxford University Press, 2006), 297–313 at 307, 309. The fact that today’s court decides not to follow a prior decision certainly does not mean that the court must be disagreeing with that decision. But it might

none of the other four judges.60 Where a majority of judges agree as to the decision but disagree as to the correct grounds for the decision, extracting a ratio decidendi from the case may be an arbitrary exercise.61 Perhaps we should not be surprised occasionally to encounter the argument that rationes decidendi might be more unequivocal and easily definable within a system of case law when judges sitting on multi-member panels are in the habit of voicing doubts and disagreements only for good

just a claim that it is not as bad as the worst. Secondly, precedent-following might not always be a more efficient decision-method than is starting with a clean slate: there may be conflicting precedents, and multiple rationes within the precedents themselves, so that starting with a clean slate, should it be a viable option, might be less troublesome an option than following an earlier decision or series of decisions.151 150 151 See Richard A. Wasserstrom, The Judicial Decision: Toward a

four possible constructions – constructions A, B, C and D. This means that X permits the courts some discretion, but the discretion is constrained. It may be that, in case P1, a court creates a precedent to the effect that X should mean A. A later court might prefer that X mean B. Notwithstanding this preference, nevertheless, that court would have no basis for overruling P1, for in doing so it would simply be substituting one permissible construction for another. If such overruling were

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