Reasoning with Previous Decisions: Beyond the Doctrine of Precedent

Publikation: Bidrag til tidsskriftTidsskriftartikelForskningfagfællebedømt

‘[A] relative absence of skills in case analysis’ is said to be ‘the Achilles heel of civil-law methods’. This article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. Its techniques can appear different from the common law ‘case law method’, but they are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists is in the dominance of the common law paradigm of precedent and the accompanying ‘case law method’. If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond the concept of precedent to a wider notion, which would embrace practices and theories in legal systems outside the Common law tradition. This article presents the concept of ‘reasoning with previous decisions’ as such an alternative and develops its basic models.
The article first points out several shortcomings inherent in limiting the inquiry into reasoning with previous decisions by the common law paradigm (1). On the basis of numerous examples provided in section (1), I will present two basic models of reasoning with previous decisions: case-bound and legislative (2). The following section seeks to explain why the common law paradigm has for so long dominated most debates on reasoning with previous decisions (3). Finally, I will offer a normative defence of the legislative model, based on the experience of the continental European tradition will be offered (4).
TidsskriftAmerican Journal of Comparative Law
Udgave nummer1
Sider (fra-til)149-171
StatusUdgivet - 2013

ID: 188046735