Neil Duxbury. - Nature and authority precedent (2008, Cambridge University Press).pdf

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T H E N A T U R E A N D A U T H O R I T YO F P R E C E D E N TNeil Duxbury examines how precedents constrain legal decision-makersand how legal decision-makers relax and avoid those constraints. Thereis no single principle or theory which explains the authority of precedentbut rather a number of arguments which raise rebuttable presumptionsin favour of precedent-following. This book examines the force and thelimitations of these arguments and shows that although the principalrequirement of the doctrine of precedent is that courts respect earlierjudicial decisions on materially identical facts, the doctrine also requirescourts to depart from such decisions when following them would per-petuate legal error or injustice. Not only do judicial precedents not‘bind’ judges in the classical-positivist sense, but, were they to do so, theywould be ill suited to common-law decision-making. Combining historicalinquiry and philosophical analysis, this book will assist anyone seeking tounderstand how precedent operates as a common-law doctrine.N E I L D U X B U R Yis Professor of Law at the London School of Economics.
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THE NATURE ANDAUTHORITY OF PRECEDENTN E I L D U X B U R Y
CAMBRIDGE UNIVERSITY PRESSCambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University PressThe Edinburgh Building, Cambridge CB2 8RU, UKFirst published in print formatISBN-13978-0-521-88579-9ISBN-13978-0-521-71336-8ISBN-13978-0-511-39484-3© Neil Duxbury 20082008Information on this title: This publication is in copyright. Subject to statutory exception and to the provision ofrelevant collective licensing agreements, no reproduction of any part may take placewithout the written permission of Cambridge University Press.Cambridge University Press has no responsibility for the persistence or accuracy of urlsfor external or third-party internet websites referred to in this publication, and does notguarantee that any content on such websites is, or will remain, accurate or appropriate.Published in the United States of America by Cambridge University Press, New YorkpaperbackeBook (NetLibrary)hardback
ToM. E. D.
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CONTENT SPrefacepageixTable of casesxii1Introduction: the usable past11. Precedent12. Positivism and precedent143. A theory of precedent?222Why does English law have a doctrine of precedent?311. The formation of a doctrine of precedent31a. The ambiguous role of classical legal positivism37b. Precedent and reason483Precedents as reasons581. Looking for a certainratio67a. The complexity of case-law68b. Definitions and tests76c. The point of the search902. Shortcuts to reason923. Pre-emptive precedent?994. Conclusion1084Distinguishing, overruling and the problemof self-reference1111. Distinguishing1132. Overruling1163. The power to overrule oneself1224. The authority of the Practice Statement129a. Constitutional impropriety131b. ‘Believe me, I always lie’139vii
5Why follow precedent?1501. Consequentialist justifications1532. Deontological arguments1673. Conclusion182Index184viiiC O N T E N T S

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