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Philosophical Foundations of Precedent
Philosophical Foundations
of Precedent
Edited by
T I M O T H Y E N D IC O T T,
HA F S T E I N N DA N K R I ST JÁ N S S O N , A N D
SE BA S T IA N L EW I S
 Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
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Public sector information reproduced under Open Government Licence v3.0
(http://​www.natio​nala​rchi​ves.gov.uk/​doc/​open-​gov​ernm​ent-​lice​nce/​open-​gov​ernm​ent-​lice​nce.htm)
Published in the United States of America by Oxford University Press
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British Library Cataloguing in Publication Data
Data available
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DOI: 10.1093/​oso/​9780192857248.001.0001
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TJ Books Limited
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
In memory of Joseph Raz
 Contents

Homage to Bruno Celano  xi

List of Contributors  xiii
Introduction: The Central Question and Its Ramifications  1
Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis

I . T H E NAT U R E O F P R E C E D E N T

1. Precedent: The What, the Why, and the How  11

Larry Alexander
2. The Doctrine of Precedent and the Rule of Recognition  21
Grant Lamond
3. On the Nature of Stare Decisis  35
Sebastian Lewis
4. Why Precedent Works  49
Nicholas W Barber
5. Precedent and Legal Creep: A Cause for Concern?  62
Adam Rigoni
6. Elements of Precedent  75
Hafsteinn Dan Kristjánsson
7. Precedent and Paradigm: Thomas Kuhn on Science and the Common Law  89
Leah Trueblood and Peter Hatfield
8. Supplanting Defeasible Rules  101
Barbara Baum Levenbook

I I . P R E C E D E N T A N D L E G A L A R G UM E N T

9. The Uses of Precedent and Legal Argument  117

Claudio Michelon
10. The ‘Expiscation’ of Legal Principles  130
Luís Duarte d’Almeida
11. The Hermeneutics of Legal Precedent  143
Ralf Poscher
12. Do Precedents Constrain Reasoning?  158
Emily Sherwin
13. Precedent, Exemplarity, and Imitation  171
Amalia Amaya
viii Contents

14. How Does Precedent Constrain?  185

John Horty
15. Precedent, Contest, and Law: A Logocratic Agony That Fits  198
Scott Brewer
16. Dog Law: On the Logical Structure (or Lack Thereof) of Distinguishing  214
Bruno Celano
17. Analogical Reasoning and Precedent  227
Cass R Sunstein
18. Precedent and Similarity  240
Frederick Schauer and Barbara A Spellman

I I I . P R E C E D E N T A N D L E G A L T H E O RY

19. Presumptive Reasons and Stare Decisis  255

Andrei Marmor
20. An Artefactual Theory of Precedent  268
Kenneth M Ehrenberg
21. The Gravitational Force of Future Decisions  281
Nina Varsava
22. A Precedent-​Based Critique of Legal Positivism  296
John CP Goldberg and Benjamin C Zipursky
23. Realism About Precedent  312
Brian Leiter
24. Precedent and the Source–​Norm Distinction  320
Fábio Perin Shecaira
25. Precedent as Generalized Second-​Order Reasons  335
Stephen Perry
26. Reasons Holism and the Shared View of Precedent  350
Torben Spaak

I V. P R E C E D E N T A N D J U D IC IA L P OW E R

27. Should Courts Follow Mistaken Statutory Precedents?  367

Dale Smith
28. Precedent and Law-​Making Powers  380
Mikołaj Barczentewicz
29. Shaping Our Relationship: The Power to Set a Precedent  392
Maris Köpcke
30. Constitutionally Erroneous Precedent as a Window on Judicial
Law-​Making in the US Legal System  405
Richard H Fallon, Jr
 Contents ix

31. Statutory Interpretation and Binding Precedents in the Civil Law Tradition  418
Lorena Ramírez-​Ludeña
32. The Oracles of Codification: Informal Authority in Statutory Interpretation  431
Nils Jansen
33. Predictability and Precedent  443
Hillary Nye

V. E F F E C T S O F P R E C E D E N T I N M O R A L I T Y A N D L AW

34. Precedent Slippery Slopes  459

Katharina Stevens
35. ‘A Previous Instance’: Yamamoto and the Uses of Precedent  475
Jeremy Waldron
36. Consistency in Administrative Law  488
Adam Perry
37. Escaping Precedent: Inter-​Legality and Change in Rules of Recognition  498
Nicole Roughan
38. Hoary Precedents  511
Matthew H Kramer
39. Partnering with the Dead to Govern the Unborn: The Value of
Precedent in Judicial Reasoning  523
Heidi M Hurd
40. Emotions and Precedent  537
Emily Kidd White

Index  551
 Homage to Bruno Celano

Palermo, 1961–​2022

To our great sorrow, our colleague Bruno Celano died in May 2022, during the production
of this book.
We are proud to publish Professor Celano’s essay, ‘Dog Law: On the Logical Structure (or
Lack Thereof) of Distinguishing’ (Chapter 16). His accomplishment in completing his con-
tribution to this book in circumstances of adversity was one instance in a sustained pattern
of fortitude that we can only describe as heroic, lived out over many years by a brilliant phil-
osopher. We honour his courage and we celebrate his camaraderie with us. We also salute the
rare combination of original ideas and rigorous argumentation that you will find in all of his
work and in his essay in this volume in particular.
His friend Professor José Juan Moreso concluded a beautiful tribute to Professor Celano
with the following words from the poet Miguel Hernández.1 With thanks to Professor
Moreso, we join him in offering those words as our homage to Bruno Celano:

A las aladas almas de las rosas

del almendro de nata te requiero
que tenemos que hablar de muchas cosas
compañero del alma, compañero.

The Editors
June 2022

1 https://​w ww.upf.edu/​web/​lphi/​home/​-​/​asse​t_​pu​blis​her/​B8ZD0​QMBz​XVe/​cont​ent/​id/​257968​166/​maximi​

zed#.Yo4-​Hi8w​3fB.
 List of Contributors

Larry Alexander is the Warren Distinguished Professor of Law at the University of San Diego School
of Law.

Amalia Amaya is the British Academy Global Professor in the School of Law at the University of
Edinburgh and Research Professor of Philosophy at the National Autonomous University of Mexico.

Nicholas W Barber is Professor of Constitutional Law and Theory at Trinity College, University of
Oxford.

Mikołaj Barczentewicz is Senior Lecturer in Law at the University of Surrey.

Scott Brewer is Professor of Law at Harvard Law School.

Bruno Celano was Professor of Philosophy of Law at the University of Palermo.

Luís Duarte d’Almeida is Honorary Professorial Fellow at the University of Edinburgh, and Aggregate
Associate Professor and Director of CEDIS—​R&D Centre in Law and Society at NOVA University’s
School of Law, Lisbon.

Kenneth M Ehrenberg is Professor of Jurisprudence and Philosophy, and Co-​Director of the Surrey
Centre for Law and Philosophy at the University of Surrey School of Law.

Timothy Endicott is the Vinerian Professor of English Law at the University of Oxford.

Richard H Fallon, Jr is the Story Professor of Law at Harvard Law School.

John CP Goldberg is the Carter Professor of General Jurisprudence at Harvard Law School.

Peter Hatfield is Hintze Research Fellow in the Department of Physics at the University of Oxford.

John Horty is Professor of Philosophy at the University of Maryland.

Heidi M Hurd holds the Ross and Helen Workman Chair in Law and is Professor of Philosophy at the
University of Illinois.

Nils Jansen holds the Chair for Roman Law, Legal History, German and European Private Law at the
Westfälische Wilhelms-​Universität, Münster.

Emily Kidd White is Assistant Professor in Osgoode Hall Law School at York University.

Maris Köpcke is Lecturer at the Faculty of Law of the University of Barcelona.

Matthew H Kramer is Professor of Legal and Political Philosophy at the University of Cambridge and
Fellow of Churchill College, Cambridge.

Hafsteinn Dan Kristjánsson is Assistant Professor of Law at the University of Iceland and Stipendiary
Lecturer at Balliol College as well as St Anne’s College, University of Oxford.

Grant Lamond is University Lecturer in Legal Philosophy at the University of Oxford and Fellow in
Law at Balliol College, University of Oxford.

Brian Leiter is Karl N Llewellyn Professor of Jurisprudence and Director of the Center for Law,
Philosophy, and Human Values at the University of Chicago.
xiv List of Contributors

Barbara Baum Levenbook is Professor Emerita at North Carolina State University.

Sebastian Lewis is Lecturer in Law at Oriel College, University of Oxford, and Global Associate
Professor of Law at the University of Notre Dame in England.

Andrei Marmor is the Jacob Gould Shurman Professor of Philosophy and Law at Cornell Law School.

Claudio Michelon is Professor of Philosophy and Law and Director of the Edinburgh Centre for Legal
Theory at the University of Edinburgh.

Hillary Nye is Assistant Professor at the Faculty of Law of the University of Alberta.

Adam Perry is Associate Professor at the Faculty of Law of the University of Oxford and Fellow and
Tutor at Brasenose College, University of Oxford.

Stephen Perry is John J O’Brien Professor of Law and Professor of Philosophy Emeritus at the
University of Pennsylvania Law School.

Ralf Poscher is Director of the Department of Public Law, Max Planck Institute for the Study of
Crime, Security and Law and Honorary Professor at the Faculty of Law, University of Freiburg.
Lorena Ramírez-​Ludeña is University Lecturer in Legal Philosophy at the Department of Law,
Universitat Pompeu Fabra, Barcelona.

Adam Rigoni is Associate Teaching Professor at Barrett, The Honors College at Arizona State
University.

Nicole Roughan is Associate Professor at the Faculty of Law at the University of Auckland.

Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of
Virginia.

Fábio Perin Shecaira is Professor at the Faculty of Law at the Federal University of Rio de Janeiro.

Emily Sherwin is Frank B Ingersoll Professor of Law at Cornell Law School.

Dale Smith is Professor at Melbourne Law School at the University of Melbourne.

Torben Spaak is Professor of Jurisprudence in the Department of Law at Stockholm University.

Barbara A Spellman is Professor of Law and Professor of Psychology at the University of Virginia.

Katharina Stevens is Assistant Professor in the Department of Philosophy at the University of

Lethbridge.

Cass R Sunstein is the Robert Walmsley University Professor at Harvard Law School.

Leah Trueblood is Career Development Fellow in Public Law at Worcester College and British
Academy Postdoctoral Fellow at the Bonavero Institute of Human Rights.

Nina Varsava is Assistant Professor of Law at the University of Wisconsin-​Madison.

Jeremy Waldron is Professor in the School of Law at New York University.

Benjamin C Zipursky is Professor of Law at Fordham Law School, where he holds the James H Quinn
’49 Chair in Legal Ethics.
 Introduction
The Central Question and Its Ramifications
Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis

You have no general reason to do the same thing today that you did yesterday. Let alone the
same thing that someone else did yesterday. So why should a judicial decision today depend
on what a court decided in the past? That is the central question concerning precedent in law.
This book offers a broad array of philosophical investigations into the central question,
and into the multiple, ramified issues that arise from efforts to answer it. By ‘philosophical’
we mean, in this context, having to do with basic aspects of the nature and authority of pre-
cedent and of the forms of reasoning that it involves, and with fundamental normative prin-
ciples as to how and when to act in accordance with precedent.
We will not summarize the forty original contributions to the subject that this book pres-
ents. We aim to set the scene by pointing out reasons for the range and the depth of the inves-
tigations offered here. And we will explain the way in which the project has developed.
The chapters discuss and criticize a variety of practices of adhering to past decisions or
precedents (we think of a precedent as a previous decision, considered under the aspect of
its potential use as a guide to action). The chapters address precedent in the common law,
the civil law, and allied fields of practical reasoning. Those varied practices all presuppose
an answer to the central question. Without an answer, we would seem to end up with a sort
of pragmatic paradox: a putative argument for the conclusion that courts cannot rationally
act on the basis of precedent. On this view, you should do the same thing today that you did
yesterday, if there were reasons that required it yesterday, and the same reasons require it
today. If a court did its duty in yesterday’s case, today’s court ought to do something similar
in a relevantly similar case (unless its duty has changed). But then, it is enough for today’s
court to act on the grounds that also required that same decision in yesterday’s case. Today’s
court need not treat the mere fact of yesterday’s decision as a ground of decision. Conversely,
if yesterday’s court made the wrong decision, then it seems that today’s court should do
something different (that is, it should act on the grounds that yesterday’s court ought to have
acted on in a relevantly similar case). Precedent, it would seem, makes no rational difference,
whether yesterday’s decision was right or wrong. It appears that courts should never act on
the basis of precedent. A precedent, you might say, can only have independent force when it
was decided incorrectly, and then today’s court should depart from it!
That argument needs to be met if the practice of precedent is to be justified. In this book
you will see resolutions to this apparent paradox offered from diverse perspectives, and you
will see arguments that it is irresolvable.

Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis, Introduction In: Philosophical Foundations of Precedent.
Edited by: Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis, Oxford University Press.
© Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis 2023. DOI: 10.1093/​oso/​9780192857248.003.0001
2 Timothy Endicott, Hafsteinn D Kristjánsson, and Sebastian Lewis

1. Surely Like Cases Should Be Treated Alike?

The answer to the central question may seem to be obvious because judicial decision is a
matter of right, and in matters of right, like cases should be decided alike.
But put that way—​in the passive voice—​there cannot possibly be such a general prin-
ciple: if there were any genuine principle, it would have to be a principle that a particular
agent or agency ought to decide like cases alike. The unity that legal systems tend to impose
on themselves offers a crucial initial step in a justification of following precedent in law. The
legal unification of judicial agency may involve a hierarchy, and may allow dissenting judg-
ments, but it secures finality and a non-​contradictory form of ordering. In that unification of
agency, judges tend not to be free to disregard what other judges have done. The judges who
serve on a court tend to act as representatives of a single, institutional agency. That tendency
generates expectations that the court will act consistently, and a sense of responsibility on
the part of judges to do so. The decision of the court is seen as an action of the same agency
that reached a decision yesterday, or years ago. Adherence to precedent not only makes the
system look unified; it tends to make the system look timeless, conferring the stability, reli-
ability, and consistency that are crucial elements in the rule of law. This institutional unifica-
tion is crucial to making sense of precedent in law.

2. Answers to the Central Question Generate a

Central Tension

And then, if an agent ought to treat like cases alike, that seems to answer the central ques-
tion. And yet, even if an agency has reason to take the same action in the same circum-
stances, it does not actually follow that it should do the same as it did in the past. What if the
agency acted improperly in the past, ignoring the reasons for action that apply in the case it
decided and in all relevantly similar cases? Systems that give legal force to precedent seem
to act on a presumption that what has been done has been rightly done, and because no
such presumption is perfectly reliable, a tension arises between reasons for acting consist-
ently, and reasons for reform. A court may have to choose whether to perpetuate a mistake,
or to act differently today. Judges very often feel an impulse to buttress the credibility and
the prestige of their institutions by adhering to what has been done before (we will call this
the ‘prestige impulse’). The presumption that the court has acted rightly in past decisions
becomes an element in the good repute of the court. But of course, like any responsible
agent, a court should not only aim for consistency; it ought to be prepared to improve, and
to learn from past mistakes.
The value of readiness to reform is endangered by a practice of strict adherence to prece-
dent. A rule requiring decisions that accord with precedent creates a potential tension with
justice: both with general justice (because a bad precedent may generate an unjust general
rule) and with equity (because there may be some special reason of justice in a new case for
departure from a general rule). All the reasons for precedent have a poignant frailty, insofar
as the court that decided the earlier case was fallible. Conversely, the fallibility of the later
court counts in favour of precedent. The result is a tension within the law’s effort to regulate
its own content and development in a way that manages imperfections in its institutions and
in its rules. Adhering to precedent promotes the rule of law, insofar as its rule-​like constraint
distinguishes judicial decision in a new case from the arbitrary say-​so of today’s court. But
a strict doctrine of precedent can also pose a threat to the rule of law, insofar as it gives legal
 The Central Question and Its Ramifications 3

effect to wayward and wilful decisions, generating the arbitrariness of governance by the
mere say-​so of a court in an earlier case. Acting by precedent, Jeremy Bentham wrote, ‘is
acting without reason, to the declared exclusion of reason, and thereby in declared oppos-
ition to reason’.1
The reasons for treating the mere fact that a court decided this in the past as a norm for
today are very different from the reasons for treating the mere fact that a legislature (or the
framers of the constitution, or the maker of a will, or the parties to a contract) decided this
in the past as a norm for today. Yet the central question about precedent is an instance of the
general question of why the community today should pay attention to what was decided on
behalf of the community in the past. So it is an instance of the question of why there should
be law. And therefore, the central tension is an instance of the general tension between the
value of the rule of law and the demands of justice. The central tension is the very epitome of
that broader tension. And because justice can require that officials and institutions adhere
to the rule of law instead of presuming to act on their own conception of justice, the central
tension is a tension within the principle that a state must act justly.
The central tension can be managed to some extent by a variety of judicial techniques.
These techniques have the potential to make various practices of precedent more just:

• overruling (typically by higher courts);

• an obiter dicta rule (giving the effect of precedent only to the earlier court’s rationale for
its decision in the case—​the ratio decidendi—​and not to other statements of law made
by the judges along the way);
• distinguishing a precedent (confining its effect to some new, restrictive specification of
the basis on which it was decided, so as to justify a different decision in a new case);
• a per incuriam rule (a doctrine that a decision does not have the legal effect of a prece-
dent insofar as it was decided on a basis that was legally mistaken, if it is incontrovert-
ible that the court in that case would have decided differently, if the mistake had been
pointed out);
• innovative techniques of interpreting precedents: the effect of a precedent can evolve
(or even change radically) because of the legal effect of later decisions that interpret it or
reinterpret it or misinterpret it; and
• treating precedents as sources of persuasive authority only, as is done in many civilian
jurisdictions.

Because of these management techniques, the central tension is a dynamic tension with re-
flexive aspects. The system’s management of its practice can itself generate problems. A doc-
trine of precedent can create a danger of hidebound, merely conformist adherence to stupid
decisions, but a doctrine of precedent can also create a danger of lawless judging: the judges
in a later case sometimes honour the judges in a precedent by treating the earlier judgment as
if it had established whatever rule the judges in the later case would prefer.
Moreover, a legal system may use legislation as a technique to respond to perceived in-
justices resulting from precedent, through the legislature’s capacity to reform the law made
by precedent (at least, if the precedent does not change constitutional rules that are beyond
the competence of the legislature!). But lawmakers may be accused of disrespect for the rule
of law if a legislature reverses the particular effect of a judicial decision. The law may prevent

1 J Bentham, Constitutional Code for the Use of All Nations and All Governments Professing Liberal Opinions

(Robert Heward 1830) 566.

4 Timothy Endicott, Hafsteinn D Kristjánsson, and Sebastian Lewis

them from doing so. And lawmakers are sometimes accused of disrespect for the rule of
law even when the legislature enacts a prospective departure from a rule that was made by
precedent—​a fascinating result of the prestige impulse, which for many generations sup-
ported a rule that statutes would be presumed not to change the common law.

3. Against a Negative Model of Precedent

If the rival risks of hidebound decisions and lawless decisions make you sceptical about pre-
cedent, let us offer you an experiment. We recommend it, at the outset of this book, as a re-
minder of the possibility that a doctrine of precedent might promote justice and the rule of
law. Imagine an anti-​precedent doctrine: when a court decides a new case in which the facts
are the same as those of an earlier case, this doctrine requires the court to give an outcome
that is different from the outcome that it gave in the earlier case. Please do not spend too
much time imagining it—​a moment is enough to see that an anti-​precedent doctrine would
be deranged (Lewis Carroll might have made it into a doctrine of the Queen of Hearts’ legal
system). A rule that a court should decide like cases alike has advantages and drawbacks;
a rule that courts should decide like cases differently would be irrational. The community
would be subjected to governance that is organized against reason. It really would involve
what Bentham said a doctrine of precedent involves: acting in declared opposition to reason.
In adjudication, as in other areas of human action, there is a radical asymmetry between
doing the same thing this time as you did before, and doing something different this time.
The former, adopted as a general policy, involves the tensions that you will encounter in the
chapters of this book. You can see that it may be worth trying to resolve those tensions, be-
cause deciding a new case differently from an earlier case cannot possibly be your general
policy.

4. The Book

There are new things to be said about the role of precedent in law. Old questions can be ad-
dressed in new and different ways, and new issues are waiting to be brought into the daylight.
We embarked on this project because we thought that there was an opportunity for estab-
lished writers and for new voices to make original contributions to the field in a collegial and
interactive project.
We had to make a strategic decision: whether to try to cover the area by commissioning
people to write on particular topics, or whether to invite them to decide for themselves. We
wholeheartedly took the latter approach. Our priority was for the authors to decide what
would be worthwhile, in a landmark collection that would involve an inclusive and balanced
group of authors coming from both the civil and the common law tradition. Although the
challenge remains, we hope to continue working towards a more inclusive and intercon-
nected community of legal philosophers.
We invited the authors to address problems of doctrine, of history, and of comparative law,
using any of the methodologies appropriate to dealing with such problems. But the central
purpose of each contribution was to be philosophical (in the broad sense explained earlier,
which includes much of what is sometimes called ‘jurisprudence’ or ‘legal theory’). The focus
of the book is on the role of precedent in law, but we have also taken a broad approach to the
 The Central Question and Its Ramifications 5

connection to law. We simply asked the authors to say something new and worthwhile in the
philosophy of precedent in law.
That approach explains why the book is arranged in five rather fluid parts: (I) the Nature
of Precedent, (II) Precedent and Legal Argument, (III) Precedent and Legal Theory, (IV)
Precedent and Judicial Power, and (V) Effects of Precedent in Morality and Law. We could
well have arranged the essays differently within those parts, and several of the essays deal
with all five of those matters. Our allocations of essays to those parts of the book are im-
pressionistic, reflecting our sense of each author’s focus of attention. And all of the essays
address the central question and the central tension, to some extent, and from very different
directions.
We set out to arrange for each author to receive critical feedback from at least one of their
fellow authors. To kick off that process in a convivial fashion, we organized a two-​day online
workshop in October 2021, in which we discussed twenty-​one of the chapters offered here.
We are very grateful to the authors for the responses they gave each other in the workshop,
and also by correspondence.
A significant part of the value of the resulting volume lies in the diversity of problems that
the authors chose to address, and in the diversity of perspectives and methods that they have
brought to their work, and in their diverse opinions. As you can see, this diversity in the work
did not arise from central planning, but from the variety of the authors’ own ideas and ap-
proaches. It has been a pleasure to see the results of the authors’ lateral thinking. Again and
again we have found them working out what they might bring to the project that is original
and different from what anyone else would do. It actually came as a relief to us that the es-
says in this unregulated array do not all simply address the central question and the central
tension in the same way. You might say that we were lucky, but it isn’t exactly luck: it is the
result of forty-​three authors asking themselves what they have to say that will shed new light
on issues resulting from the central question, and from the tensions generated by ways of
approaching it.
In lieu of a summary, consider the following forty questions—​each of which we have
drawn from one of the forty essays—​as a glimpse of those ideas and approaches:

Can precedents really be distinguished, or can they only be followed or overruled? (Larry
Alexander)
Can the law-​creating aspect of precedent be explained in terms of criteria provided by a
social rule? (Grant Lamond)
What is the relation between moral and legal grounds for following precedent?
(Sebastian Lewis)
What is the relation between legal duties to follow precedent and non-​legal social rules of
the legal community? (Nicholas Barber)
Should findings of fact ever be treated as having precedential effect in later cases? (Adam
Rigoni)
Is stare decisis a norm for the recognition of law, or a norm governing institutional
decision-​making? (Hafsteinn Dan Kristjánsson)
Does setting a precedent amount to establishing a paradigm? (Peter Hatfield and Leah
Trueblood)
What forms of argument do courts use when they rely on precedent? (Claudio Michelon)
Does distinguishing a precedent amount to replacing one original rule with two new
rules? (Barbara Baum Levenbook)
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