Abstract
I deal with the concept of precedential constraint in the common law via the concept of (practical) reason. After presenting and critically discussing John Horty’s influential reasons-as-defaults model, I introduce and defend a justification-based model, expanding on the framework developed by Faroldi and Protopopescu (All-things-considered oughts, ms, 2018; Logic Journal of the IGPL, 2019), by showing how to account for precedential constraint.
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Notes
- 1.
We ignore here further equally well-known tools a court has to distance itself from previous decisions of other courts or of the same courts. We ignore what has been called the persuasive force of precedent (see for instance Rigoni (2015) for a similar choice in a formal setting). Finally, we ignore the power of (some) higher courts to reaffirm or create precedent, such as, most famously, the U.S. Supreme Court decision to reverse the precedent of “separate but equal” doctrine (established by the Supreme Court itself in Plessy v. Ferguson (1896)) that legitimated racial segregation in Brown v. Board of education of Topeka (1954). In fact, some of the highest courts in common law systems hold themselves unable to overrule their own decisions—this was the official policy of the House of Lords (in its jurisdictional composition the highest court in the UK until very recently) until 1966, for instance.
- 2.
Obviously, there are many criticisms one can raise from a philosophical standpoint. See Lamond (2016) for an introduction to such questions.
- 3.
- 4.
There is a third model of precedent: precedents as application of underlying principles, i.e. what is binding is the justification of the previous decision. Following Horty, we won’t consider this model in what follows.
- 5.
- 6.
Bonevac’s own proposal is to identify reasons with the true antecedents of true practical conditionals, i.e. conditionals with an ought in their consequent: \(A > \mathcal {O}B\). The conditional here is common-sense entailment, for which see Pelletier and Asher (1997) and Asher and Bonevac (1997), whereas the deontic modality is the usual standard deontic logic obligation. There is a quite troublesome problem for Bonevac’s approach, however, which is inherited by Pelletier and Asher’s framework: it allows substitution of logical equivalents, which is problematic for a theory of reasons that wants to pay attention to relevance, as it was argued at length in Faroldi (2019).
- 7.
This is already recognized in part of the literature, although mostly (but not completely) informally. Without mentioning the vast literature on value and good (cf. for instance Kagan (1988)), Additive fallacy) and considering only reasons, see Bader (2016), Dietrich and List (2017a,b) and Schroeder (2007).
- 8.
And indeed, if one could define some notion of equivalence for reasons, ≡, given t ≡ s and t : ϕ, it would not follow that s : ϕ, as shown in Faroldi, Truthmaker Semantics for Justification Logic, ms.
- 9.
The application operation encodes the idea of applying one term to another to obtain a complex one, in a sort of step of applying modus ponens to the formulas justified by certain terms.
- 10.
In case we have +: s ∗∪ t ∗⊆ (s + t)∗.
- 11.
With an abuse of notation we are now using ∪ in the object language to refer to an operation of aggregation. We do not employ + because we wish to stay non-committal about the aggregation, leaving its properties up to the user, perhaps also with reference to different provisions in different legal systems.
- 12.
For atomism and holism in the formal theory of reasons, see Bader (2016), for instance.
- 13.
For an explanatory semantics, cf. Faroldi, Truthmaker Semantics for Justification Logic, ms.
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Faroldi, F.L.G. (2022). Common Law Precedent and the Logic of Reasons. In: Rahman, S., Armgardt, M., Kvernenes, H.C.N. (eds) New Developments in Legal Reasoning and Logic. Logic, Argumentation & Reasoning, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-030-70084-3_12
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