Philosophical Foundations of Precedent

by Timothy Endicott (Editor), Hafsteinn Dan Kristjánsson (Editor), Sebastian Lewis (Editor)

Overview

Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy. The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world. In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems.

Product Details

ISBN-13:	9780192671561
Publisher:	OUP Oxford
Publication date:	03/27/2023
Series:	Philosophical Foundations of Law
Sold by:	Barnes & Noble
Format:	eBook
Pages:	576
File size:	2 MB

About the Author

Timothy Endicott is the Vinerian Professor of English Law at the University of Oxford. He writes on Constitutional and Administrative Law and Jurisprudence, with special interests in law and language and legal interpretation. He was a Fellow in Law at Balliol College from 1999 to 2020 and served as the Dean of the Faculty of Law in Oxford for two terms, from 2007 to 2015. He is the author of Administrative Law, 4th edition (OUP 2018) and Vagueness in Law (OUP 2000). Hafsteinn Dan Kristjánsson is an adjunct at the University of Iceland and a lecturer at Balliol College, Oxford. Before that, he was the deputy to the Parliamentary Ombudsman in Iceland. He has written two books, twenty peer-reviewed articles and book chapters, and 13 other articles or book chapters on law chiefly in the fields of administrative and constitutional law, legal method, jurisprudence, civil and criminal procedure as well as criminal law. Sebastian Lewis is Lecturer in Law, Oriel College, Oxford, and Global Associate Professor of Law, University of Notre Dame in England and Incoming Fellow in Law, University of Surrey. He is interested in jurisprudence, legal reasoning, public law, and comparative public law. He has taught constitutional law and jurisprudence for various colleges at Oxford and King's College London. He holds a Master of Laws from Harvard Law School and is a qualified lawyer in Chile.

Table of Contents

Introduction: The Central Question and Its Ramifications, Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian LewisI. The Nature of Precedent1. Precedent: The What, the Why, and the How, Larry Alexander2. The Doctrine of Precedent and the Rule of Recognition, Grant Lamond3. On the Nature of Stare Decisis, Sebastian Lewis4. Why Precedent Works, N. W. Barber5. Precedent and Legal Creep: A Cause for Concern?, Adam Rigoni6. Elements of Precedent, Hafsteinn Dan Kristjánsson7. Precedent and Paradigm: Thomas Kuhn on Science and the Common Law, Leah Trueblood and Peter Hatfield8. Supplanting Defeasible Rules, Barbara Baum Levenbook9. Realism About Precedent, Brian LeiterII. Precedent and Legal Argument10. The Uses of Precedent and Legal Argument, Claudio Michelon11. The 'Expiscation' of Legal Principles, Luís Duarte d'Almeida12. The Hermeneutics of Legal Precedent, Ralf Poscher13. Do Precedents Constrain Reasoning?, Emily Sherwin14. Precedent, Exemplarity, and Imitation, Amalia Amaya15. How Does Precedent Constrain?, John Horty16. Precedent, Contest, and Law: A Logocratic Agony That Fits, Scott Brewer17. Dog Law: On the Logical Structure (or lack thereof) of Distinguishing, Bruno Celano18. Analogical Reasoning and Precedent, Cass R. Sunstein19. Precedent and Similarity, Frederick Schauer and Barbara A. SpellmanIII. Precedent and Legal Theory20. Presumptive Reasons & Stare Decisis, Andrei Marmor21. An Artefactual Theory of Precedent, Kenneth M. Ehrenberg22. The Gravitational Force of Future Decisions, Nina Varsava23. A Precedent-Based Critique of Legal Positivism, John C.P. Goldberg and Benjamin C. Zipursky24. Precedent and the Source-Norm Distinction, Fábio Perin Shecaira25. Precedent as Generalized Second-Order Reasons, Stephen Perry26. Reasons Holism and the Shared View of Precedent, Torben SpaakIV. Precedent and Judicial Power27. Should Courts Follow Mistaken Statutory Precedents?, Dale Smith28. Precedent and Law-Making Powers, Mikolaj Barczentewicz29. Shaping our Relationship: The Power to Set a Precedent, Maris Køpcke30 Constitutionally Erroneous Precedent as a Window on Judicial Lawmaking in the U.S. Legal System, Richard H. Fallon, Jr.31. Statutory Interpretation and Binding Precedents in the Civil Law Tradition, Lorena Ramírez-Ludeña32. The Oracles of Codification: Informal Authority in Statutory Interpretation, Nils Jansen33. Predictability and Precedent, Hillary NyeV. Effects of Precedent in Morality and Law34. Precedent Slippery Slopes, Katharina Stevens35. 'A Previous Instance': Yamamoto and the Uses of Precedent, Jeremy Waldron36. Consistency in Administrative Law, Adam Perry37. Escaping Precedent: Interlegality and Change in Rules of Recognition, Nicole Roughan38. Hoary Precedents, Matthew H. Kramer39. Partnering with the Dead to Govern the Unborn: The Value of Precedent in Judicial Reasoning, Heidi M. Hurd40. Emotions and Precedent, Emily Kidd White