The Meaning of a Precedent

Abstract

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example for both officials and a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Unlike rules, precedents have exemplar force, in which their conduct-guiding force may be restricted to partial categories, rather than whole ones. Their import is independent of their justification. The content and scope of a legal decision's extension is not set exclusively by officials. It is socially set and depends upon social salience.