Precedent and Paradigm: Thomas Kuhn on Science and the Common Law
The Philosophical Foundations of Precedent (Forthcoming, OUP)
12 Pages Posted: 6 Apr 2022
Date Written: March 18, 2022
Abstract
In The Structure of Scientific Revolutions, Thomas Kuhn uses an analogy with the common law to help explain the nature of scientific progress. He says, ‘In science…a paradigm is rarely an object for replication. Instead, like an accepted judicial decision in the common law, it is an object for further articulation and specification under new or more stringent conditions.’ This chapter argues that this analogy is helpful for three reasons. First, it offers a useful – although non-exhaustive – definition of precedent. Second, Kuhn’s account helps to explain when and why precedents must be overturned. This is not because precedents are ‘mistaken’ exactly, but rather because, as in science, ‘malfunctions’ arise in the process of solving legal problems. Kuhn’s theory explains the two types of change which are necessary for the common law to progress: cumulative and paradigmatic. Third and finally, Kuhn’s analogy shows that, while progress in the law is not linear, this complexity is to the law’s advantage. Sometimes it is necessary, and even helpful, for the common law to move backward to move forward.
Keywords: Precedent, Paradigm, Thomas Kuhn, Philosophy of Science
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