Private Law Theory

ABSTRACT
This paper addresses attempts to demonstrate the importance of paying attention to the types of authoritative precedent-relying argument employed by courts for a theory of judicial precedent. It demonstrate that different argument-types leave diverse argumentative footprints (ie rely on different assumptions, support different claims, offer different support to the argument’s conclusion, etc) by discussing three types of precedent-relying arguments: the so-called ‘legal syllogism’, legal analogies, and inferences to the best explanation. It argues that authoritative precedent performs different argumentative roles in each of these argument-types and concludes that a sufficiently complex theory of authoritative judicial precedent must take into account these different roles.

Michelon, Claudio, The uses of Precedent in Legal Argument (February 18, 2022). Edinburgh School of Law Research Paper No 2022/04.

First posted 2022-02-24 10:00:58