IDEAS home Printed from https://ideas.repec.org/a/oup/oxjlsj/v41y2021i4p873-898..html
   My bibliography  Save this article

Precedent and the Rule of Law

Author

Listed:
  • Sebastian Lewis

Abstract

Courts may reason using precedents in various ways, but not all of them satisfy the rule of law. This article provides two ways that are compatible with this ideal and one which is not. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. Two claims are defended. First, courts always have a reason to decide precedent-governed disputes by following precedent. This reason is a minimum requirement of the rule of law, and in some cases this reason may be reinforced in the form of an obligation. Secondly, depending on whether courts have a reason or an obligation to follow precedent, two modes of precedential reasoning may be identified. The article explains them in detail. The modes, together with the considerations that are reasons in favour of them or against them, provide a valuable philosophical foundation of precedent-following in law.

Suggested Citation

  • Sebastian Lewis, 2021. "Precedent and the Rule of Law," Oxford Journal of Legal Studies, Oxford University Press, vol. 41(4), pages 873-898.
    • Handle: RePEc:oup:oxjlsj:v:41:y:2021:i:4:p:873-898.
    as

    Download full text from publisher

    File URL: http://hdl.handle.net/10.1093/ojls/gqab007
    Download Restriction: Access to full text is restricted to subscribers.
    ---><---

    As the access to this document is restricted, you may want to search for a different version of it.

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:oup:oxjlsj:v:41:y:2021:i:4:p:873-898.. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no bibliographic references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Oxford University Press (email available below). General contact details of provider: https://academic.oup.com/ojls .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.