Precedent

Abstract

The second of the classical or traditional sources of law is Precedent, expressed in the maxim stare decisis et non quieta movere, “to stand by what has been decided, and not to disturb what is still.” Many questions, however, arise concerning exactly what it is to “stand by what it is decided.” Reasoning from precedent is a distinctive form of reasoning: Is it truly distinctive, or can it be reduced to some other form of reasoning? Is it peculiar to the law, or is it merely that in the law reasoning from precedent takes a special form? Why employ this form of reasoning at all? What does it mean to say that a court is “bound” by precedent? Is such talk even meaningful? In this chapter, I shall proceed as follows. In Section 3.1, I will characterize the notion of precedent in general, without special reference to the law. Then in Section 3.2 I shall examine more closely how in fact the idea of precedent functions in the typical legal context as a source of law. Section 3.3 will say something about precedent and legislation. In Sections 3.4 and 3.5 I shall discuss issues that arise when trying to understand the bindingness of precedent, in the former looking at rule-scepticism and judicial comity, and in the latter at conventional bindingness and ruleness. In Section 3.6 I shall consider the justification of precedent.