Roles and the Moral Practice of Precedent

Some recent work in legal theory argues that legal questions boil down to moral questions. On this view, lawyers and judges are ultimately interested in the moral effect of things done by legal institutions. This view has been called the ‘new legal anti-positivism’. So far, it has not given a convincing account of precedent. That is, it has not explained how moral reasons can account for what judges do in practice when they follow past decisions. Any successful account must explain the central features of this practice: why lower courts follow higher courts, and not the other way around; the difference between ratio and obiter; and the situations in which judges distinguish or overrule past decisions. This article gives a non-positivist account that meets this challenge, by giving a prominent place to the moral importance of roles. The account avoids some problems faced by existing non-positivist accounts of precedent.