Torben Spaak (Professor of Jurisprudence, Department of Law, Stockholm University) has posted Reasons Holism and the Shared View of Precedent (25 pages) on SSRN. Here is the abstract:
One may plausibly distinguish two different models of precedent, the Common Law model, according to which precedents have binding force and are sources of law proper, and the Civil Law model, according to which precedents have persuasive force only and are sources of law only in a weaker sense. Although the two models thus differ in certain respects, they both assume (i) that a precedent is a precedent in relation to cases that are like the precedent case, and only in relation to such cases, (ii) that the ratio decidendi of a case is the general norm without which the precedent court could not rationally have decided the case the way it did, (iii) that following precedent is to act in accordance with such a general norm, and (iv) that the general reasons for following precedent are that doing so is a matter of fairness, and that it is conducive to predictability, stability, and economy of effort. In what follows, I shall refer to this as the shared view of precedent, and the question I shall be discussing is whether the shared view can be squared with a theory called reasons holism. The reason why there may be a problem is that if reasons holism is correct, and if it applies to legal reasons, there can be no general legal norms; and if there can be no general legal norms, questions will arise about what, exactly, the ratio decidendi of a case is, about what it means to follow precedent, and about the binding, or persuasive, force of precedent.
Although I shall later question this assumption, I begin by assuming that reasons holism is true, and I ask what the implications are of this assumption for the shared view of precedent. I shall argue (1) that if the usual reasons for following precedent are genuine, then any of these reasons may favor following precedent in some situations, but may favor not following precedent in others, and that this would threaten the shared view. I shall, however, also argue (2) that we may coherently conceive of these reasons as merely conventional reasons, and that therefore the shared view will not be threatened. Moreover, I shall argue (3) that if ordinary legal reasons are genuine, the ratio decidendi of a precedent cannot be conceived as a genuine general legal norm, that following precedent can therefore not be understood as action in accordance with such a norm, and that no alternative analysis of the ratio in terms of legal rules of thumb, or supervenience likeness, could be successful. Finally, I shall, however, also argue (4) that the theory of reasons holism turns out to be rather problematic, and (5) that even if it were not, exclusive legal positivists could still defend the shared view, on the grounds that legal reasons at all levels are merely conventional reasons.
Via Larry Solum at Legal Theory Blog, who says "Knocked my socks off. Highly recommended. Download it while it's hot!"
I'm not sure if it's relevant to originalism, but that's unusually high praise from Professor Solum so it seems worth noting.
Posted at 6:44 AM