Setting Precedents Without Making Norms?

Law and Philosophy 39 (6):577-616 (2020)
  Copy   BIBTEX

Abstract

Some authors argue that the rule-of-law ideal gives judges a prima facie duty to provide a determinate formulation of the precedent’s general norm in all their precedent-opinions. I question that claim. I agree that judges have a duty to decide their cases based on reasons and that they should formulate these reasons in their opinions. I also agree that formulations of general norms should be the goal of common-law development and that judges have a duty to contribute to the realization of this goal. However, I argue that judges may sometimes do so better if they do not provide a determinate formulation of a general norm in their opinion. Often, judges may not feel confident that they are able to formulate a good general norm for their precedent decision, even if they believe that their decision is both correct and justifiable through argument. In this case, various reasons speak against providing a determinate formulation of a general norm, including rule-of-law reasons.

Other Versions

No versions found

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 102,141

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Analytics

Added to PP
2020-04-09

Downloads
67 (#319,988)

6 months
5 (#1,084,146)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Katharina Stevens
University of Lethbridge

Citations of this work

Add more citations

References found in this work

Do precedents create rules?Grant Lamond - 2005 - Legal Theory 11 (1):1-26.

Add more references