Setting precedents without making norms?
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Date
2020
Authors
Stevens, Katharina
Journal Title
Journal ISSN
Volume Title
Publisher
Springer
Abstract
Some authors argue that the rule-of-law ideal gives judges a prima facie duty to provide a determinate formulation of the precedent’s general norm in all their precedent-opinions. I question that claim. I agree that judges have a duty to decide their cases based on reasons and that they should formulate these reasons in their opinions. I also agree that formulations of general norms should be the goal of common-law development and that judges have a duty to contribute to the realization of this goal. However, I argue that judges may sometimes do so better if they do not provide a determinate formulation of a general norm in their opinion. Often, judges may not feel confident that they are able to formulate a good general norm for their precedent decision, even if they believe that their decision is both correct and justifiable through argument. In this case, various reasons speak against providing a determinate formulation of a general norm, including rule-of-law reasons.
Description
Accepted author manuscript
Keywords
General norm , Precedent
Citation
Stevens, K. (2020). Setting precedents without making norms? Law and Philosophy, 39(6), 577-616. https://doi.org/10.1007/s10982-020-09383-6