Elements of Precedent

Abstract

The chapter provides a general analysis for all legal systems of the roles that precedents play in determining a legal norm according to the legal method. It argues that some precedents are ‘independent’ sources of law in the sense that they are identified by a norm of recognition (relatively) independently of how the ‘underlying source’ was treated. These precedents become sources even if they were wrongly decided according to the legal method in the jurisdiction. Common law precedents in England may be examples of this. Contrariwise, some precedents are a ‘dependent’ source of law. These precedents count as sources if a court has identified the law used to decide the case according to the legal method in the jurisdiction. A precedent that is wrongly decided is not recognized as a source of law. Perhaps this is the case in some civil law jurisdictions. The chapter argues that precedents can be sources of law even though there is no norm of change empowering a court to create law. It is enough that the precedent is identified as a source by a norm of recognition. Moreover, the chapter argues that norms of institutional decision-making, such as norms of adjudication, matter for understanding the legal effects of precedent. It suggests that stare decisis is best understood as an institutional duty imposed on particular institutions, that is courts, to follow past decisions but not a norm of recognition. This view allows for different mixtures of norms of recognition and institutional duties in different legal systems.