No Reasons: Lamond on Precedent

Posted: 18 Jul 2018

See all articles by Mark McBride

Mark McBride

National University of Singapore (NUS), Faculty of Law, Students

Date Written: July 18, 2018

Abstract

Identifying the role of precedent in law, and the conditions under which a judge may permissibly distinguish precedent, is a central task for any account, or theory, of legal reasoning. Unsurprisingly, different accounts, or theories, of precedent abound. My focus in this paper is on an intriguing, and prima facie appealing, relatively recent effort to identify the role of precedent in law, offered by Grant Lamond (2005). My modest aim is threefold: (1) To point out that Lamond’s account of Joseph Raz’s (1979) seminal so-called rules account of precedent is inaccurate in important ways. (2) To claim that Lamond fails to see that the core of his so-called reasons account of precedent is extensionally equivalent to Raz’s account. Moreover Lamond reaches extensional equivalence with Raz by means of several contestable assumptions not needed by Raz. And (3) To argue that the (only) portion of Lamond’s account which genuinely goes beyond Raz – viz. Lamond’s extension of his core to account for the development of legal doctrine – is, whilst fascinating, mistaken.

Keywords: Precedent, Distinguishing, Rules Account, Reasons Account, Legal Theory

Suggested Citation

McBride, Mark, No Reasons: Lamond on Precedent (July 18, 2018). NUS Law Working Paper No. 2018/017. Available at SSRN: https://ssrn.com/abstract=3215737 or http://dx.doi.org/10.2139/ssrn.3215737

Mark McBride (Contact Author)

National University of Singapore (NUS), Faculty of Law, Students ( email )

Singapore

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