The Uses of Precedent in Legal Argument

17 Pages Posted: 22 Feb 2022

See all articles by Claudio Michelon

Claudio Michelon

University of Edinburgh - School of Law

Date Written: February 18, 2022

Abstract

This paper addresses attempts to demonstrate the importance of paying attention to the types of authoritative precedent-relying argument employed by courts for a theory of judicial precedent. It demonstrates that different argument types leave diverse argumentative footprints (i.e. rely on different assumptions, support different claims, offer different support to the argument’s conclusion, etc) by discussing three types of precedent-relying arguments: the so-called “legal syllogism,” legal analogies, and inferences to the best explanation. It argues that authoritative precedent performs different argumentative roles in each of these argument-types and concludes that a sufficiently complex theory of authoritative judicial precedent must take into account these different roles.

Keywords: Judicial Precedent, Precedent application, legal analogy, Inference to the best legal explanation

Suggested Citation

Michelon, Claudio, The Uses of Precedent in Legal Argument (February 18, 2022). Edinburgh School of Law Research Paper No. 2022/04, Available at SSRN: https://ssrn.com/abstract=4038430 or http://dx.doi.org/10.2139/ssrn.4038430

Claudio Michelon (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
393
Abstract Views
1,112
Rank
139,120
PlumX Metrics