Towards a General Practice of Precedent

Sebastian Lewis, 'Towards a General Practice of Precedent' (2023) Jurisprudence (Forthcoming)

21 Pages Posted: 21 Nov 2022

Date Written: October 23, 2022

Abstract

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent -- even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent -- stare decisis -- but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty.

Keywords: precedent, rule of law, morally suboptimal precedent, institutional approach, judicial duty, stare decisis.

Suggested Citation

Lewis, Sebastian, Towards a General Practice of Precedent (October 23, 2022). Sebastian Lewis, 'Towards a General Practice of Precedent' (2023) Jurisprudence (Forthcoming), Available at SSRN: https://ssrn.com/abstract=4269652

Sebastian Lewis (Contact Author)

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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