In this paper, it is shown (1) that there are two schemes for argument from analogy that seem to be competitors but are not, (2) how one of them is based on a distinctive type of similarity premise, (3) how to analyze the notion of similarity using story schemes illustrated by some cases, (4) how arguments from precedent are based on arguments from analogy, and in many instances arguments from classification, and (5) that when similarity is defined by means of (...) episode schemes, we can get a clearer idea of how it integrates with the use of argument from classification and argument from precedent in case-based reasoning by using a dialogue structure. (shrink)

This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are (...) required to decide cases on the basis that the earlier decision was correctly decided. (shrink)

This paper is inspired by and develops on E. J. Lowe’s work, who writes in his book The Possibility of Metaphysics that ‘metaphysical possibility is an inescapable determinant of actuality’ (1998: 9). Metaphysics deals with possibilities – metaphysical possibilities – but is not able to determine what is actual without the help of empirical research. Accordingly, a delimitation of the space of possibilities is required. The resulting – controversial – picture is that we generally need to know whether something is (...) possible before we can know whether it is actual. In order to appreciate this picture, we need to understand Lowe’s slogan: ‘essence precedes existence’ (Lowe 2008: 40). This slogan has both an ontological and an epistemic reading. The ontological reading is related to the now familiar idea that essence grounds modality, as popularised by Kit Fine. The epistemic reading suggests that we can know the essence of some entity before we know whether or not that entity exists. However, this idea is often met with puzzlement and Lowe himself sadly passed away before he had a chance to clarify this framework. I will present the framework as I understand it, develop it on my own terms, and put forward a qualified defence of it. I will also illustrate how the framework can be put to use with a case study concerning the discovery of transuranic elements. (shrink)

Honoring a living will typically involves treating an incompetent patient in accord with preferences she once had, but whose objects she can no longer understand. How do we respect her precedent autonomy by giving her what she used to want? There is a similar problem with subsequent consent: How can we justify interfering with someone''s autonomy on the grounds that she will later consent to the interference, if she refuses now?Both problems arise on the assumption that, to respect someone''s autonomy, (...) any preferences we respect must be among that person''s current preferences. I argue that this is not always true. Just as we can celebrate an event long after it happens, so can we respect someone''s wishes long before or after she has that wish. In the contexts of precedent autonomy and subsequent consent, the wishes are often preferences about which of two other, conflicting preferences to satisfy. When someone has two conflicting preferences, and a third preference on how to resolve that conflict, to respect his autonomy we must respect that third preference. People with declining competence may have a resolution preference earlier, favoring the earlier conflicting preference (precedent autonomy), whereas those with rising competence may have it later, favoring the later conflicting preference (subsequent consent). To respect autonomy in such cases we must respect not a current, but a former or later preference. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint (...) that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

This fourth edition of Precedent in English Law presents a basic guide to the current doctrine of precedent in England, set in the wider context of the jurisprudential problems which any treatment of this topic involves. Such problems include the nature of _ratio_ _decidendi_ of a precedentand of its binding force, the significance of precedents alongside other sources of law, their role in legal reasoning, and the account which must be taken of them by any general theory of law. Considerable (...) re-writing has been undertaken to update case-law and take account of the possibleimplications for the doctrine of precedent of the impact of European Community law, making it an indispensable work of reference for readers interested in the past history, present state, and future developments of English rules of precedent. (shrink)

: Debates on precedent autonomy and some forms of paternalistic interventions, which are related to questions of personal identity, are analyzed. The discussion is based on the distinction between personal identity as persistence and as biographical identity. It first is shown that categorical objections to advance directives and "Ulysses contracts" are based on false assumptions about personal identity that conflate persistence and biographical identity. Therefore, advance directives and "Ulysses contracts" are ethically acceptable tools for prolonging one's autonomy. The notions of (...) personality and biographical identity are used to analyze the ethically relevant features. Thereby, it is shown that these concepts are operative in and useful for thinking in biomedical ethics. The overall conclusion is that categorical arguments against precedent autonomy or "Ulysses contracts" are based on misleading theories of personal identity and that advance directives are an ethically respectable tool for prolonging individuals' autonomy in cases of dementia and mental illness. (shrink)

In 'The Standard Picture and its Discontents', Mark Greenberg remarks that the typical way that legal theorists think about legal obligations does not sit well with the way the common law works. I argue that Alexander's and Sherwin’s Rule Model of precedent can deal with all the problems that Greenberg accuses the Standard Picture of having. Nonetheless, I further argue that combining the Standard Picture and the Rule Model ultimately leads to another problem: the inability of the Standard Picture – (...) Rule Model to separate rule from dicta. (shrink)

The purpose of this paper is to e»tahlish some connections between precedent-based reasoning as it is studied in the field of Artificial Intelligence and Law, particularly in the work of Ashley, and two other fields: deontic logic and nonmonotonic logic. First, a deontic logic is described that allows lor sensible reasoning in the presence of conflicting norms. Second, a simplified version of Ashley's account of precedent-based reasoning is reformulated within the framework of this deontic logic. Finally, some ideas from the (...) theory of nonmonotonic inheritance are employed to show how Ashley's account might be elaborated to allow for a richer representation of the process of argumentation. (shrink)

How aggressively should we pursue life-sustaining treatment of the demented patient? This question becomes increasingly important as our population ages and medical technology offers ever more life-prolongation. In Life'sDominion, Ronald Dworkin addresses the issue in the context of an Alzheimer patient who had previously declared the desire to avoid life-sustaining intervention. Dworkin argues for the primacy of what he calls precedent autonomy: In 1995, the HastingsCenterReport carried thoughtful rebuttals by Daniel Callahan and Rebecca Dresser. Much of Callahan's article is devoted (...) to patients who never executed an advance directive, but he states unequivocally that such directives can be overridden, basing much of his argument on the writings of Sanford Kadish. Together, Dresser, Callahan, and Kadish define a clear position opposed to precedent autonomy. (shrink)

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but (...) it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice. (shrink)

This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common (...) law are not necessarily quite as customary as sometimes considered, showing that the common law built from precedents fits within a distributed design model of artefacts and that stare decisis has a wider systemic function of upholding certain rule of law principles. It ends with some considerations about the institutional nature of precedents, specifically that judicial decisions are most often both applications and developments of legal norms, but also determinations of legal validity. (shrink)

This chapter contains sections titled: The Scope of Precedential Constraint The Strength of Precedential Constraint References.

Bioethicists are widely agreed that patients have a right of self-determination over how they are treated. Our duty to respect this is said to be based on the principle of respect for autonomy. In end-of-life care the patient may be incompetent and unable to exercise that right. One solution is to exercise it in advance. Advance directives, which include living wills and powers of attorney for health care, enable people to decide what medical treatment they will receive later, when they (...) become incompetent. Advance directives have been criticized in two general ways. First, many critics contend that advance directives fail on a practical level to effect a patient's autonomous choices because, for example, people cannot foresee their futures well enough to make informed decisions in advance. Second, many critics contend that, practical problems aside, there is no moral authority for exercising control over one's incompetent future self. (shrink)

The role of acetylcholinesterase (AChE) in neurotransmission is well known. But long before synapses are formed in vertebrates, AChE is expressed in young postmitotic neuroblasts that are about to extend the first long tracts. AChE histochemistry can thus be used to map primary steps of brain differentiation. Preceding an possibly inducing AChE in avian brains, the closely related butyrylcholinesterase (BChE) spatially fore-shadows AChE-positive cell areas and the course of their axons. In particular, before spinal motor axons grow, their corresponding rostral (...) sclerotomes and myotomes express BChE, and both their neuronal source and myotomal target cells express AChE. Since axon growth has been found inhibited by acetylcholine, it is postulated that both cholinetsreases can attract neurite growth cones by neutralizing the inhibitor. Thus, the early expression of both cholinesterases that is at least partially independent from classical cholinergic synaptogenesis, sheds new light on the developmental and medical significance of these enzymes. (shrink)

Courts in common law systems decide cases as they decided like cases in the past—even if they believe they decided those past cases wrongly. What, if anything, justifies this practice? I defend two main claims. The first is that fairness favors treating like cases alike if that means treating them correctly. The second is that, in general, a court is as likely to decide an instant case correctly as it was to decide a previous and like case correctly. Together, these (...) claims tell us that departing from and following precedent are equally likely to yield a correct decision, whereas following precedent may also yield a fair decision. Adhering to precedent is the dominant alternative, as a result. Fairness therefore justifies the practice of precedent. While this conclusion is not original, my argument for it is. (shrink)

Volume 20, Issue 8, August 2020, Page 104-106.

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. (shrink)

The art of living today has shifted to a continuous state of the experimental. In one of his last texts, Telemorphosis, renowned thinker and anti-philosopher Jean Baudrillard takes on the task of thinking and reflecting on the coming digital media architectures of the social. While “the social” may have never existed, according to Baudrillard, his analysis at the beginning of the twenty-first century of the coming social media–networked cultures cannot be ignored. One need not look far in order to find (...) oneself snared within some sort of screenification of a techno-social community. “What the most radical critical critique, the most subversive delirious imagination, what no Situationist drift could have done... television has done.” Collective reality has entered a realm of telemorphosis. (shrink)

Patients with disorders of consciousness after severe brain injury need surrogate decision makers to guide treatment decisions on their behalf. Formal guidelines for surrogate decisionmaking generally instruct decision makers to first appeal to a patient’s written advance directive, followed by making a substituted judgment of what the patient would have chosen, and lastly, to make decisions according to what seems to be in the patient’s best medical interests. Substituted judgment is preferable because it is taken to preserve patient autonomy, by (...) using a patient’s past wishes and values to reconstruct what they would have chosen for themselves. In this paper, the author argues that for a certain population of patients, the standard interpretation of substituted judgment cannot ensure the preservation of patient autonomy. Patients with “covert awareness” may continue to have values and an authentic sense of self, which may differ from their past values and wishes. Accordingly, surrogate decision makers should make decisions based on how the patient is likely to experience their condition in the present, rather than their past wishes and values. (shrink)

Some authors argue that the rule-of-law ideal gives judges a prima facie duty to provide a determinate formulation of the precedent’s general norm in all their precedent-opinions. I question that claim. I agree that judges have a duty to decide their cases based on reasons and that they should formulate these reasons in their opinions. I also agree that formulations of general norms should be the goal of common-law development and that judges have a duty to contribute to the realization (...) of this goal. However, I argue that judges may sometimes do so better if they do not provide a determinate formulation of a general norm in their opinion. Often, judges may not feel confident that they are able to formulate a good general norm for their precedent decision, even if they believe that their decision is both correct and justifiable through argument. In this case, various reasons speak against providing a determinate formulation of a general norm, including rule-of-law reasons. (shrink)

The method of reflective equilibrium is typically characterized as a process of two kinds of adjustments: hold fixed one’s current set of commitments/intuitions and adjust rules/principles to account for them, then hold fixed those rules while making adjustments to one’s set of commitments. Repeat until no further adjustments are required. Such characterizations ignore the role of precedent, i.e., information about the commitments and rules of others and how those might serve as guides in one’s own process of deliberation. In this (...) paper we develop a model that narrows in on a local part of a reflective equilibrium process in which a group of peer agents start with identical lists of commitments and work towards finding the rule that captures that set. If successful, we say they reach rest stop interpersonal convergence. The trouble is that, without precedent, reaching this convergence rests on implausible deterministic assumptions. We analyze how far the inclusion of a kind of soft precedent goes towards aiding the group in reaching said convergence when those assumptions are relaxed. (shrink)

B. A. Farrell; XIII*—Temporal Precedence, Proceedings of the Aristotelian Society, Volume 73, Issue 1, 1 June 1973, Pages 193–216, https://doi.org/10.1093/arist.

While developments of a shared intellectual tradition, the enactivist approach and the organizational account proffer importantly different accounts of organismic normativity. Where enactivists tend to follow Hans Jonas, Andres Weber, and Francisco Varela in grounding intrinsic affordance norms in existential concern, organizational theorists such as Alvaro Moreno, Matteo Mossio, and Leonardo Bich seek a more deflationary account of these normative phenomena. Critiques directed at both of these accounts of organismic normativity motivate the introduction of the precedential account of organismic normativity, (...) which I nevertheless locate within the enactivist approach, broadly construed. After detailing empirical evidence that would seem to vindicate the precedential account, I explore some of its implications. (shrink)

The art of living today has shifted to a continuous state of the experimental. In one of his last texts, _Telemorphosis_, renowned thinker and anti-philosopher Jean Baudrillard takes on the task of thinking and reflecting on the coming digital media architectures of the social. While “the social” may have never existed, according to Baudrillard, his analysis at the beginning of the twenty-first century of the coming social media–networked cultures cannot be ignored. One need not look far in order to find (...) oneself snared within some sort of screenification of a techno-social community. “What the most radical critical critique, the most subversive delirious imagination, what no Situationist drift could have done... television has done.” Collective reality has entered a realm of telemorphosis. (shrink)

The Ethics is a philosophical book written by Baruch Spinoza. It was written in Latin. Although it was published posthumously in 1677, it is his most famous work, and is considered his magnum opus. In The Ethics, Spinoza attempts to demonstrate a "fully cohesive philosophical system that strives to provide a coherent picture of reality and to comprehend the meaning of an ethical life. Following a logical step-by-step format, it defines in turn the nature of God, the mind, human bondage (...) to the emotions, and the power of understanding -- moving from a consideration of the eternal, to speculate upon humanity's place in the natural order, freedom, and the path to attainable happiness. (shrink)

En el artículo se realizó una revisión de los modelos de planificación estratégica en sentido general, pero que son aplicados en los momentos actuales en el ámbito de las instituciones de educación superior. El modelo globalizador, el cual es el básico en la mayor parte de los ejercicios de planificación; el modelo sectorial, que tiene un importante arraigo en el sector educativo latinoamericano, y el modelo situacional, cuya noción básica consiste en que planificar es una acción de todos los actores. (...) Igualmente se describen otros como el denominado complejo, el cual va cobrando interés en los estudiosos del tema; pues aunque esta línea de pensamiento posee sus ángulos de interés en el campo específico de la planificación estratégica, en el ámbito universitario aún le queda camino por recorrer para el logro de una mayor profundización en la temática, de manera que ella pueda ser aplicada al proceso formativo universitario. In the article, a general revision of the strategic planning models that are applied to the present times in the field of high education institutions was made. The models are: the globalizing model, which is the basic in the most part of the planning exercises; the sectorial model, which is very well established in the Latin-American educational sector; and the situational model, the basic notion of which consists on the fact that planning is an action that correspond to all the actors. The model known as complex was described as well. This model has become important among the specialists in the subject because, although this line of thinking has established its angles of interest in the specific field of strategic planning, it still has a long way to run, in the university field, for getting a greatest deepening in the theme, in a way that it could be applied to the university formative process. (shrink)

The aim of the following note is to draw attention to certain links between the marriage of Claudius and Agrippina and that of Nero and Octavia. Previous writers have not, so far as I know, dealt fully with the implications of these marriages, especially when they are seen in the light of the Silanus affair of A.D. 48–49. In each case, it will be argued here, Claudius may have been impressed by Greek precedents.

The aim of the following note is to draw attention to certain links between the marriage of Claudius and Agrippina and that of Nero and Octavia. Previous writers have not, so far as I know, dealt fully with the implications of these marriages, especially when they are seen in the light of the Silanus affair of A.D. 48–49. In each case, it will be argued here, Claudius may have been impressed by Greek precedents.

The article presents an approach to the formation of a decision support system in the management of energy consumption of production technological systems. Such systems allow the company to detect and respond in a timely manner to the appearance of hidden energy losses, to carry out organizational measures aimed at energy saving and to optimize the timing and scope of repair and restoration work. The approach is based on the modeling of stationary sections of energy consumption, presented in the form (...) of precedents, their accumulation and subsequent analysis in the space of influential technological parameters. In addition to the base of precedents, the system includes software modules for assessment and formation of the profile of hidden energy losses, modules of technical condition, forecast and formation of precedents. The analysis of precedents consists in the selection of similar cases of energy consumption, the formation of efficient energy consumption functions and the calculation of energy losses with its help. Hidden energy losses can be calculated in real time for all technological systems of the enterprise. This allows you to build a profile of energy losses of the enterprise. The advantage of this approach in comparison with the known ones is that it allows to adapt to technological systems with different energy sources. The article emphasizes that the method can work with the energy manager with both linear and nonlinear dependence of energy consumption on process parameters. However, the limitations of this approach are noted. Thus, the determination of latent energy losses and technical condition of the equipment requires the participation of qualified specialists of the enterprise, who must be able to analyze the results and propose measures to eliminate energy losses. (shrink)

This paper investigates the process of reasoning through which a judge determines whether a precedent-case gives her a binding reason to follow in her present-case. I review the objections that have been raised against the two main accounts of reasoning by precedent: the rule-account and the analogy-account. I argue that both accounts can be made viable by amending them to meet the objections. Nonetheless, I believe that there is an argument for preferring accounts that integrate analogical reasoning: any account of (...) reasoning by precedent that is descriptively minimally adequate will leave some room for judicial discretion. Discretion should be used under consideration of the best legally relevant arguments for and against a decision. Integrating analogical reasoning helps the judge to bring to her own attention the strongest case for following. Analogical reasoning also eases the recognition of possible reasons for distinguishing. Thereby, it facilitates a more balanced decision-making process. (shrink)

These words are a collaborative effort to think across different practices of knowing and sensing. They don’t pretend to compose a complete article. They are simply an assemblage that wants to open spaces for dwelling, for connecting, for dissenting. As such it gravitates around the images of Daniel Brittany Chávez’s performance: “Quisieron Enterrarnos … ”, his artist statement and Rolando’s notes on precedence, trans* and the decolonial. In this conversation, we are allies and accomplices in thinking through trans* as (...) a prefix both of non-binary transgender identity and from Rolando Vázquez’s conceptions of trans* from decolonial thought at praxis. In conversation, we offer this assemblage not from a space of tension but from a space of mutually nurturing decolonial praxis. (shrink)

The result model of precedent holds that a legal precedent controls a fortiori cases—those cases, that is, that are at least as strong for the winning side of the precedent as the precedent case itself. This paper defends the result model against some objections by Larry Alexander, drawing on ideas from the field of Artificial Intelligence and Law in order to define an appropriate strength ordering for cases.

This article explores the ascetic tendencies of Naḥmanides as reflected in his oeuvre as a whole, including his halakhic, kabbalistic, exegetical, and philosophical output. A close examination of Naḥmanides’s kabbalistic commentary to a talmudic sugiya concerning the differences between oaths and vows uncovers the austere and ascetic ethos in his teaching and its central place in his religious world. This perspective is linked to the nature of human beings and the human soul, the relationship between body and psyche, the meaning (...) of life and the overcoming of death, and the status of the Torah and the connection between observance of the commandments and the voluntary hasidic ethos. (shrink)

As patient autonomy expands, a highly controversial issue has emerged. Should the advance directives of refusing life-saving treatments or requesting euthanasia of persons with dementia who express changed minds or are often in a happy state be fulfilled? There are two autonomy-related positions. The mainstream position in philosophical discussions supports the priority of ADs based on precedent autonomy. Buchanan and Brock, and Dworkin represent this view. The other position supports the priority of PWDs’ current wishes based on minimal autonomy represented (...) by Jaworska. By rethinking the theoretical and practical challenges of the two positions and their arguments respectively, the paper concludes that in such a scenario, the priority of ADs is morally indefensible, and it is also challenging to establish minimal autonomy defend the moral priority of PWDs’ current wishes. For PWDs whose past values, beliefs, and preferences fade away but who retain apparent intrinsic sentience of well-being, a modified defined quality-of-life approach serves as another reasonable basis in their medical decision-making, and the ADs and the QoL should be further merged to reduce the uncertainty of the grey zone. (shrink)