Stare Decisis, Repetition and Understanding Common Law
Intellectual Property Research Institute of Australia, Melbourne Law School
Murdoch University, Politics and International Studies, School of Social Science and Humanities
Griffith Law Review, Vol. 16, No. 1, pp. 131-150, 2007
U of Melbourne Legal Studies Research Paper No. 361
The works of Michel Foucault have not, so far, been employed so as to enable an adequate understanding of the functioning of the law. This article begins to remedy this situation. Past uses of Foucault's work have failed to provide a satisfactory account of the relationship between the juridical and the disciplinary aspects of the law in general. The application of his ideas to the practice of the common law offers a way forward. In this article, we use Foucault's ideas of discursive formations and discursive practices to understand the operation of the doctrine of stare decisis in the common law. It is uncontroversial to assert that the doctrine is difficult to define - this analysis demonstrates that this signifies its always/already nature. The understanding applied here indicates that stare decisis is best seen as a set of discursive practices - the most significant of which relates to the repetition of past legal statements. The doctrine, as a result, is both fundamental to the operation of the common law as a discursive formation and constitutive of those who participate in, and perpetuate, it - the lawyers and judges.
Number of Pages in PDF File: 26
Keywords: functioning of law, Foucault's work, juridical and the disciplinary aspects of the law, stare decisis, discursive practices, common law
JEL Classification: K00, K10, K40Accepted Paper Series
Date posted: September 29, 2008 ; Last revised: February 5, 2009
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