Subjects:

English Legal System, Jurisprudence

Contents:

Part I. Introduction The Usable Past:

1. Precedent

2. Positivism and precedent

3. A theory of precedent?

Part II. Why Does English Law Have a Doctrine of Precedent?:

4. The formation of a doctrine of precedent

Part III. Precedents as Reasons:

5. Looking for a certain ratio

6. Shortcuts to reason

7. Pre-emptive precedent?

8. Conclusion

Part IV. Distinguishing, Overruling and the Problem of Self-Reference:

9. Distinguishing

10. Overruling

11. The power to overrule oneself

12. The authority of the Practice Statement

Part V. Why Follow Precedent?:

13. Consequentialist justifications

14. Deontological arguments

15. Conclusion.

Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following.

This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice.

Not only do judicial precedents not ‘bind’ judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this will assist anyone seeking to understand how precedent operates as a common-law doctrine.

• The detailed study of a key common-law concept makes this a valuable core law text
• Written with undergraduate and postgraduate law courses in mind
• Huge relevance to academic lawyers, barristers and judges within all common-law jurisdictions