Nature and Authority of Precedent
Nature and Authority of Precedent Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. This book examines the force…
Specifikacia Nature and Authority of Precedent
Nature and Authority of Precedent
Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. 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. 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.
Combining historical inquiry and philosophical analysis, 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.
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