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11 LEG 1 (2005)

handle is hein.journals/legthory11 and id is 1 raw text is: Legal Theory, 11 (2005), 1-26. Printed in the United States ofAmerica Published by Cambridge University Press 0361-6843/05 $12.00 +00 DO PRECEDENTS CREATE RULES? Grant Lamond* Balliol College, Oxford University The doctrine of precedent is one of the most distinctive features of the mod- ern common law. Understanding the operation of precedent is important for our theorizing about the nature of law, since any adequate theory must be compatible with the practice. In this paper I will explore the conventional view of precedent endorsed by practitioners and many legal philosophers alike. I will argue that for all its attractions, it provides a distorted view of the nature of precedent. The distortion grows out of the basic assumption that precedents create rules, and thus that the common law can be understood as a form of rule-based decision-making. Instead, the common law is a form of case-by-case decision-making, and the doctrine of precedent constrains this decision-making by requiring later courts to treat earlier cases as cor- rectly decided. The relevance of earlier cases is not well understood in terms of rules-they are better understood as a special type of reason. This is not simply a technical debate about the proper means to capture the way precedent operates in legal reasoning; how we characterize prece- dent matters to our understanding of the function of precedent in the common law. The rule-based model suggests that the function of precedent is to settle the law so that it can guide individuals and the courts. The reason- based model suggests that the function is to compensate for the erosion of consensus in the common law by simultaneously fixing starting points for decision-making without giving the judiciary lawmaking power. I will represent the conventional view of precedent in terms of four propo- sitions. My claim is not that every practitioner or theorist would endorse ev- ery detail of these propositions but that they capture fairly well a widely held view. These are only very rough characterizations, which different theorists would expand upon in different ways, but they are sufficient as a starting point for discussion. The four propositions are these: *The initial research for this paper was carried out while visiting at the Faculty of Law and the School of Philosophy at the University of Sydney. I would like to thank John Finnis and Larry Alexander for their very helpful commentaries on two separate occasions-the Oxford Jurisprudence Colloquium (Finnis) and the Analytical Legal Philosophy Conference in New York (Alexander). I would also like to thank the participants at those gatherings for their comments, especially Joseph Raz and John Gardner. I am particularly grateful to John Stanton-Ife for helping me to clarify my thinking on this topic. 1

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