Reasoning with Previous Decisions: Beyond the Doctrine of Precedence
Forthcoming (in a revised version) in (2013) American Journal of Comparative Law
24 Pages Posted: 25 Oct 2012 Last revised: 2 Nov 2012
Date Written: August 31, 2012
‘[A] relative absence of skills in case analysis’ is said to be ‘the Achilles heel of civil-law methods’. This article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. These techniques can appear different from the common law ‘case law method’, but are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists lies in the dominance of the common law paradigm of precedent and the accompanying ‘case law method’. If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond precedent to a wider notion, which would embrace practices and theories existing in legal systems outside the Common law tradition. This article presents the concept of ‘reasoning with previous decisions’ as such an alternative and develops its basic models. The article firstly points out several shortcomings of limiting the inquiry into reasoning with previous decisions by the common law paradigm. On the basis of numerous examples provided in section (1), I will present two basic models of reasoning with previous decisions: case-bound and legislative. The following section seeks to explain why the common law paradigm has for so long dominated most debates on reasoning with previous decisions. Finally, a normative defense of the legislative model, based on the experience of the continental European tradition will be offered.
Keywords: common law tradition, civil law tradition, United States Supreme Court, European Court of Justice, precedent, reasoning with previous decisions, judicial lawmaking, judicial authority
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