The Rationality of Tradition
McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law
PROPERTIES OF LAW: ESSAYS IN HONOUR OF JAMES HARRIS, pp. 297-313, T. Endicott, J. Getzler, and E. Peel, eds., Oxford: Oxford University Press, 2006
This paper is concerned with the binding power of precedent. It argues that the commitment to a particular outcome, which is represented by an official decision on the issue, rightly provides a rational basis to dispense with any re-examination of the same issue. This rational basis is independent from, and incommensurable with, the rationality (the set of substantive reasons) underlying the original decision. The irreconcilable tension between the two modes of rationality is resolved differently in different legal systems; the common law solution is that in some situations, the rationality that favours consistency is privileged as a mandatory rule of law (stare decisis) that disallows access to the rationality based on substantive reasons. Even in these systems, however, rationality based on reasons must sometimes prevail, so that a prior decision now thought to be incorrect can be abandoned. Paradoxically, the rationality based on consistency is both the source of, and the greatest hindrance to, the judicial power to develop the law.
Number of Pages in PDF File: 17
Keywords: precedent, stare decisis, overruling, rationality, case law
JEL Classification: K1, K10, K41Accepted Paper Series
Date posted: February 17, 2011
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