Introduction

Abstract

Abstract PRECEDENT is usually discussed in books on jurisprudence. Jurisprudence may be roughly described as the study of a lawyer’s fundamental assumptions. Bentham spoke of it as ‘the art of being methodically ignorant of what everybody knows’. If for ‘every-body’ we substitute ‘every lawyer’, we arrive at the conception of jurisprudence to which the following pages seek to give effect. Every lawyer, whether he is a practitioner or a legal writer, usually takes for granted the meaning of such statements as ‘that is a rule of law’, ‘this was the ratio decidendi of the case’, ‘the decision is binding on the Court of Appeal, but not on the House of Lords’, and ‘X has a legal right to be paid £100 by Y’. One of the purposes of jurisprudence is to elucidate these statements. It is not, or at least need not be, the only purpose of jurisprudence. A consideration of the ethical or social merits of legal rules also forms part of that subject. When the elucidation of legal concepts is the primary object of investigation, the undertaking is often spoken of as ‘analytical jurisprudence’; this book may be described as an essay in analytical jurisprudence because it is primarily concerned with the elucidation of the rules of precedent and of some other problems raised by case-law.