Philosophical Foundations of Precedent

Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy.

The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world.

In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems.

Timothy Endicott, Vinerian Professor of English Law, University of Oxford,Hafsteinn Dan Kristjánsson, Lecturer, University of Oxford,Sebastian Lewis, Graduate Researcher, University of Oxford

Timothy Endicott is the Vinerian Professor of English Law at the University of Oxford. He writes on Constitutional and Administrative Law and Jurisprudence, with special interests in law and language and legal interpretation. He was a Fellow in Law at Balliol College from 1999 to 2020 and served as the Dean of the Faculty of Law in Oxford for two terms, from 2007 to 2015. He is the author of Administrative Law, 4th edition (OUP 2018) and Vagueness in Law (OUP 2000).

Hafsteinn Dan Kristjánsson is an adjunct at the University of Iceland and a lecturer at Balliol College, Oxford. Before that, he was the deputy to the Parliamentary Ombudsman in Iceland. He has written two books, twenty peer-reviewed articles and book chapters, and 13 other articles or book chapters on law chiefly in the fields of administrative and constitutional law, legal method, jurisprudence, civil and criminal procedure as well as criminal law.

Sebastian Lewis is a graduate researcher in Law at Oxford. He is interested in jurisprudence, legal reasoning, public law, and comparative public law. He has taught constitutional law and jurisprudence for various colleges at Oxford and King's College London. He holds a Master of Laws from Harvard Law School and is a qualified lawyer in Chile.

Introduction: The Central Question and Its Ramifications, Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis
I. The Nature of Precedent
1. Precedent: The What, the Why, and the How, Larry Alexander
2. The Doctrine of Precedent and the Rule of Recognition, Grant Lamond
3. On the Nature of Stare Decisis, Sebastian Lewis
4. Why Precedent Works, N. W. Barber
5. Precedent and Legal Creep: A Cause for Concern?, Adam Rigoni
6. Elements of Precedent, Hafsteinn Dan Kristjánsson
7. Precedent and Paradigm: Thomas Kuhn on Science and the Common Law, Leah Trueblood and Peter Hatfield
8. Supplanting Defeasible Rules, Barbara Baum Levenbook
9. Realism About Precedent, Brian Leiter
II. Precedent and Legal Argument
10. The Uses of Precedent and Legal Argument, Claudio Michelon
11. The 'Expiscation' of Legal Principles, Luís Duarte d'Almeida
12. The Hermeneutics of Legal Precedent, Ralf Poscher
13. Do Precedents Constrain Reasoning?, Emily Sherwin
14. Precedent, Exemplarity, and Imitation, Amalia Amaya
15. How Does Precedent Constrain?, John Horty
16. Precedent, Contest, and Law: A Logocratic Agony That Fits, Scott Brewer
17. Dog Law: On the Logical Structure (or lack thereof) of Distinguishing, Bruno Celano
18. Analogical Reasoning and Precedent, Cass R. Sunstein
19. Precedent and Similarity, Frederick Schauer and Barbara A. Spellman
III. Precedent and Legal Theory
20. Presumptive Reasons & Stare Decisis, Andrei Marmor
21. An Artefactual Theory of Precedent, Kenneth M. Ehrenberg
22. The Gravitational Force of Future Decisions, Nina Varsava
23. A Precedent-Based Critique of Legal Positivism, John C.P. Goldberg and Benjamin C. Zipursky
24. Precedent and the Source-Norm Distinction, Fábio Perin Shecaira
25. Precedents as Generalized Second-Order Reasons, Stephen Perry
26. Reasons Holism and the Shared View of Precedent, Torben Spaak
IV. Precedent and Judicial Power
27. Should Courts Follow Mistaken Statutory Precedents?, Dale Smith
28. Precedent and Law-Making Powers, Mikolaj Barczentewicz
29. Shaping Relationships: The Power to Set a Precedent, Maris Köpcke
30. Constitutionally Erroneous Precedent as a Window on Judicial Lawmaking in the U.S. Legal System, Richard H. Fallon, Jr.
31. Statutory Interpretation and Binding Precedents in the Civil Law Tradition, Lorena Ramírez-Ludeña
32. The Oracles of Codification: Informal Authority in Statutory Interpretation, Nils Jansen
33. Predictability and Precedent, Hillary Nye
V. Effects of Precedent in Morality and Law
34. Precedent Slippery Slopes, Katharina Stevens
35. 'A Previous Instance': Yamamoto and the Uses of Precedent, Jeremy Waldron
36. Consistency in Administrative Law, Adam Perry
37. Escaping Precedent: Interlegality and Change in Rules of Recognition, Nicole Roughan
38. Hoary Precedents, Matthew H. Kramer
39. Partnering with the Dead to Govern the Unborn: The Value of Precedent in Judicial Reasoning, Heidi M. Hurd
40. Emotions and Precedent, Emily Kidd White