The Uses of Precedent and Legal Argument

Abstract

Abstract Courts rely on authoritative judicial precedents by deploying different types of argument. They (a) apply the ratio decidendi of previous cases to the case before them, (b) deploy legal analogies, (c) argue a fortiori, (d) argue a simile, (e) infer more general principles, inter alia. Each different type of argument leaves a distinctive argumentative footprint: they are deployed for different reasons, possess different structures, rely on different assumptions, and offer different support to different types of claims. This chapter sets out to motivate the claim that a satisfactory theory of authoritative judicial precedent should take account of the different ways in which authoritative precedent is used in legal argument. It does so by presenting and contrasting three types of judicial precedent-based argument, namely (i) arguments where a court purports to apply an authoritative precedent, (ii) precedent-based legal analogies, and (iii) precedent-based inferences to the best legal explanation. From the discussion of these argument types, the chapter shows that the authority of precedent is used in judicial decisions in a variety of ways and that a sufficiently sophisticated theory of judicial precedent should pay heed to these different ways in which authority is utilized in legal argument.