The Status of Rules of Precedent

Abstract

In a recent article in the Cambridge Law Journal, Laurence Goldstein argues that four problems of legal theory which are supposed to present elements of paradox are capable of a reasonably simple solution. I am interested here in only one of the problems discussed by Goldstein: that concerning the status of the rules of precedent. I agree with Goldstein that this problem has a reasonably simple solution: but I disagree with the solution he proposes. (Broadly this is that pronouncements on precedent do not establish rules of law.) I propose in this short article to offer what I believe to be a correct solution to this problem. The solution proposed is one which has already been suggested by A. W. B. Simpson in 1961 in “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent” but there is, I believe, a defect in Simpson's formulation of the argument for it, which has impeded its general acceptance. In any event, as there is clearly still controversy about the issue, it seems worthwhile restating this solution with fresh arguments. I will first discuss the problem, then its proposed solution, then Simpson's discussion of the topic, and finally some further questions which are suggested by the proposed solution.