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.

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