Nature and Authority of Precedent
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...
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An examination of how precedent operates as a common-law doctrine.
Table of cases1 Introduction: the usable past 1Precedent 1Positivism and precedent 14A theory of precedent? 222 Why does English law have a doctrine of precedent? 31The formation of a doctrine of precedent 313 Precedents as reasons 58Looking for a certain ratio 67Shortcuts to reason 92Pre-emptive precedent? 994 Distinguishing, overruling and the problem of self-reference 111Distinguishing 113Overruling 116The power to overrule oneself 122The authority of the Practice Statement 1295 Why follow precedent? 150Consequentialist justifications 153Deontological arguments 167Index 184
