Should Courts Follow Mistaken Statutory Precedents?

Forthcoming in T Endicott, H Kristjansson and S Lewis (eds), Philosophical Foundations of Precedent (OUP)

20 Pages Posted: 9 May 2022

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: February 21, 2022

Abstract

Sometimes, when a court interprets a statute, it makes a mistake, with the result that the court mis-identifies the statute’s legal effect (ie, the contribution the statute makes to the content of the law). Where the court is an appellate one, the question arises: should later courts follow the earlier court’s mistaken interpretation of the statute or should they uphold the statute’s legal effect? This question can be understood as a question about what courts ought morally to do or as a question about what the law requires of them. In this chapter, I am interested in the latter way of understanding the question. The answer to that question may vary between legal systems, but I shall argue that, in the United Kingdom, later courts may be faced with conflicting legal duties in this situation. However, where this is so, the principle of Parliamentary supremacy resolves the conflict by prioritising the court’s duty to uphold the statute’s legal effect over the duty to follow the earlier court’s mistaken interpretation of the statute.

Keywords: Statutory Interpretation, Precedent, Parliamentary Supremacy, Judicial Practice, Rule of Law

Suggested Citation

Smith, Dale, Should Courts Follow Mistaken Statutory Precedents? (February 21, 2022). Forthcoming in T Endicott, H Kristjansson and S Lewis (eds), Philosophical Foundations of Precedent (OUP), Available at SSRN: https://ssrn.com/abstract=4101100 or http://dx.doi.org/10.2139/ssrn.4101100

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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