Precedent and Law-Making Powers

Abstract

This chapter provides a critical overview of the debate on the relationship between precedent making and exercises of a particular kind of legal powers: law making powers. In doing so, it challenges some common claims about the courts (necessarily) having law-making powers. The chapter discusses what is common among the major general accounts of legal powers and shows the role of intentions and of volitional control of power-holders. Those aspects have consequences for what kind of judge-lead legal change should be viewed as an exercise of a legal power specifically to make (change) the law. This is particularly salient in cases of ‘unprecedent’ (where a court tries to avoid setting a precedent) and to situations where court-lead legal change becomes effective through a mechanism akin to custom than to legislating. Moreover, the chapter discusses the question of the tension between the official stories (ideologies) of legal systems and second order (eg academic) accounts on the issue of judicial powers to make the law. It argues that one should not be too quick to dismiss the law’s official claim that judges do not have a power to make the law.

Keywords: precedent, legal change, legal powers, law-making powers, judicial power