The Doctrine of Precedent and the Rule of Recognition

Abstract

Abstract The first part of this chapter highlights two aspects of the doctrine of precedent as it is understood by common lawyers: the law-creating nature of judicial decisions and the ways in which precedents bind courts. The second, longer, part of the chapter considers whether the doctrine can be given a satisfactory philosophical analysis in terms of Hart’s rule of recognition, and what light the doctrine sheds on the rule of recognition itself. It defends the view that the law-creating aspect of precedent can be explained in terms of criteria in the rule of recognition against claims that there is too much disagreement over the criteria for this conception to be plausible. It goes on to argue that the rule of recognition is not simply a social rule of officials but a customary law of the system, and a detailed account of such customary law is proposed. Finally, it suggests that the existence of other customary laws that do not owe their existence to the rule of recognition militates against the idea that every legal system necessarily has just one (often highly complex) rule of recognition. Instead, legal systems contain as many rules of recognition as there are ultimate sources of law.