Precedent and the Rule of Law
41 Oxford Journal of Legal Studies 873 (2021)
39 Pages Posted: 3 May 2022
Date Written: 27 10, 2021
Courts may reason using precedents in various ways, but not all of them satisfy the rule of law. This article provides two ways that are compatible with this ideal, and one which is not. In doing so, the article aims to explain the practice of following precedent in law, and offer criteria for evaluating its value. Two claims are defended. First, courts always have a reason to decide precedent-governed disputes by following precedent. This reason is a minimum requirement of the rule of law, because in some cases this reason may be reinforced in the form of an obligation. Second, depending on whether courts have a reason or an obligation to follow precedent, two modes of precedential reasoning may be identified. The article provides them in detail. The modes, together with the considerations that are reasons in favour or against them, provide a valuable philosophical foundation of precedent-following law.
Keywords: Precedent, Null Model, Rule of Law, Modes of Precedential Reasoning, Authoritative and Persuasive Modes, Evaluating the Modes
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