Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are (...) required to decide cases on the basis that the earlier decision was correctly decided. (shrink)

Doctrinally, a precedent is a case of the same or higher court that furnishes an authoritative rule for the determination of the case at hand, either because the facts are alike, or, if the facts are different, because the principle that governed the first case is applicable to the different facts. In this article I try to free precedent form the dominant doctrinal view by offering a more intuitive conception: that to be precedent means to be treated as precedent. Put (...) differently, I attempt to see precedent not as descriptive of a previous decision or rule but as the aggregate effect of responses to one or a series of court decisions in the legal community. I illustrate this viewpoint by developing a version of a response-dependent concept that incorporates our intuitive grasp of how precedent works. In the pursuit of this task I rely on the basic philosophical premises of response-dependence theory and on one paradigmatic response-dependent concept—the quality of being funny. (shrink)