Sebastian Lewis (University of Oxford) has posted On the Nature of Stare Decisis (T Endicott, H Kristjánsson & S Lewis (eds) Philosophical Foundations of Precedent (Oxford UP, Forthcoming)) on SSRN. Here is the abstract:
Why must certain courts in the common law follow precedent? In this chapter I identify two approaches to this question: moral and juridical. According to the former, courts must follow precedent whenever there are sufficiently strong moral reasons to ground a moral obligation. According to the latter, courts must follow precedent because their duty is to give effect to the law--and precedents, or at least many of them, constitute sources of law. The upshot is that the grounds on which courts may be morally required to follow precedent need not be those on which they are legally bound to do so. I aim to conceptualise these two approaches and the way they interrelate. I will argue that stare decisis is a legal doctrine because morality cannot account for central features of it--for example, the distinction between ratio and obiter, the rules on vertical and horizontal precedent, and the grounds on which certain courts may overrule precedent. But this view may be objected to by proponents of the ‘one-system view’--i.e., a new and distinctive approach to jurisprudence which draws from Ronald Dworkin’s late work. I will consider that objection, and the problems of this view in accounting for stare decisis.
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