Precedent, Discretion and Fairness

Abstract

The notions of a court being bound by precedent to take a certain decision, of earlier cases being authorities for the case in question, are notions fundamental to the practice of law in common-law jurisdictions. Yet, like any other fact in the world, the existence of the practice of stare decisis provokes speculation as to its underlying nature and justification. The purpose of this paper is to offer an account of what it is for a court to be bound by precedent, an account which is broadly speaking Positivist in orientation but which is rooted more deeply than existing accounts in philosophical, rather than merely jurisprudential, understanding of concepts like those of “rule” and “practice”. As will emerge in the paper, the tendency is for jurisprudential discussion about binding precedent to introduce baldly terms like ‘rule’, ‘practice’, ‘necessity’, ‘choice’ and so forth as if there was an antecendently existing and accepted meaning for those terms — so that we know exactly what is being said when binding precedent is said to be a matter of judicial practice, for example. But to the philosopher the meaning of those terms is itself also a matter of dispute. A genuinely deep understanding of binding precedent will therefore only come when those terms themselves are subjected to some discussion and the results of that discussion applied back to binding precedent itself. To reach such understanding is the goal of this paper.