RULES AND REASONS IN THE THEORY OF PRECEDENT

Abstract

The doctrine of precedent, as it has evolved within the common law, has at its heart a form of reasoning—broadly speaking, alogic—according to which the decisions of earlier courts in particular cases somehow generalize to constrain the decisions of later courts facing different cases, while still allowing these later courts a degree of freedom in responding to fresh circumstances. Although the techniques for arguing on the basis of precedent are taught early on in law schools, mastered with relative ease, and applied on a daily basis by legal practitioners, it has proved to be considerably more difficult to arrive at a theoretical understanding of the doctrine itself—a clear articulation of the underlying logic.

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