Arguers sometimes cite a decision made in an earlier situation as a reason for making the equivalent decision in a later situation. I argue that there are two kinds of “case-to-case arguments”. First, there are arguments by precedent, which cite the mere existence of the past decision as a reason to decide in the same way again now, independent of the past decision’s merits. Second, there are case-to-case arguments from parralel reasoning which presuppose that the past decision was justified and (...) are used to show that an equivalent present decision would also be justified. Both arguments are a type of argument by analogy. They differ in their structures and conditions of cogency, even though they often look the same in presentation. Their similar appearance poses a risk of miss-evaluation and fallacious use. Therefore a clearly theorized distinction is important. (shrink)

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this (...) runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty. (shrink)

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting (...) for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases. (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)

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

In March 2021, the Mexican Constitution was amended to transition to a system of precedents. This amendment mandates that the “reasons” of Supreme Court rulings will be binding on the lower courts. However, the reform is rooted in a long-standing practice of ‘Tesis’, i.e., abstract statements that the Court itself identifies when deciding a case. Moreover, there is no consensus as to what these reasons are and why they should be binding. The aim of this article is to identify the (...) possible conceptions of reasons to explore the Court’s different judge-made law roles. Different common law conceptions of the ratio decidendi are used as “mirrors” to identify four models of judicial lawmaking in Mexican practice, namely: judicial legislation, implicit rules, moral-political justifications and social categories. Although the first model seems to prevail, the others provide means for a broader understanding of how the Court creates law depending on the interpretative context in which it operates. (shrink)

En marzo de 2021 se reformó la Constitución mexicana para transitar a un sistema de precedentes. Esta enmienda establece que las “razones” de las sentencias de la Suprema Corte serán obligatorias para los tribunales inferiores. Sin embargo, la reforma se enmarca en una arraigada práctica de tesis jurisprudenciales, i. e., enunciados abstractos identificados por la misma Corte al resolver un caso. Además, no hay consenso sobre qué son estas razones y por qué deberían ser vinculantes. El objetivo de este artículo (...) es identificar las posibles concepciones de razones para revelar los distintos roles de la Corte en la creación del derecho judicial. Se utilizan nociones de la ratio decidendi del common law como herramientas de introspección para identificar cuatro modelos de creación del derecho en la práctica mexicana, a saber: legislación judicial, reglas implícitas, justificaciones político-morales, y categorías sociales. Aunque la primera concepción parece ser la dominante, las alternativas amplían el abanico para entender cómo es que la Corte crea derecho dependiendo del contexto interpretativo en que opere. (shrink)

This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions, but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends (...) on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as `thick resources with dynamic content'. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law's past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present. (shrink)

Coherentists fail to distinguish between the individual revision of a conviction and the intersubjective revision of a rule. This paper fills this gap. A conviction is a norm that, according to an individual, ought to be ascribed to a provision. By contrast, a rule is a judicially ascribed norm that controls a case and is protected by the formal principles of competence, certainty, and equality. A revision of a rule is the invalidation or modification such a judicially ascribed norm, provided (...) that the judge meets the burden of argumentation of formal principles. Thus, judges can revise their convictions without changing the law. (shrink)