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MMMM This page intentionally left blank THE NATURE AND AUTHORITY OF PRECEDENT Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not ‘bind’ judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine. NEIL DUXBURY is Professor of Law at the London School of Economics. T H E N A TU R E A N D AUTHORITY OF PRECEDENT NEIL DUXBURY CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521885799 © Neil Duxbury 2008 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2008 ISBN-13 978-0-511-39484-3 eBook (NetLibrary) ISBN-13 978-0-521-88579-9 hardback ISBN-13 978-0-521-71336-8 paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. To M. E. D. CONTENT S Preface page ix Table of cases xii 1 Introduction: the usable past 1. Precedent 1 2. Positivism and precedent 3. A theory of precedent? 2 1 14 22 Why does English law have a doctrine of precedent? 1. The formation of a doctrine of precedent 31 a. The ambiguous role of classical legal positivism b. Precedent and reason 48 3 Precedents as reasons 58 1. Looking for a certain ratio 67 a. The complexity of case-law 68 b. Definitions and tests 76 c. The point of the search 90 2. Shortcuts to reason 92 3. Pre-emptive precedent? 99 4. Conclusion 108 4 Distinguishing, overruling and the problem of self-reference 111 1. 2. 3. 4. Distinguishing 113 Overruling 116 The power to overrule oneself 122 The authority of the Practice Statement a. Constitutional impropriety 131 b. ‘Believe me, I always lie’ 139 vii 129 37 31 viii CONTENTS 5 Why follow precedent? 150 1. Consequentialist justifications 153 2. Deontological arguments 167 3. Conclusion 182 Index 184 PREFACE I wrote this book while serving as the deputy head of the law school and the director for all the undergraduate law admissions programmes at the University of Manchester. In both roles I, like many of those around me, would often try to invest an argument with more authority by saying – if not always quite showin