Mauro Barberis

How One Can Benefit from his own Wrong. Schauer on Precedent, Common Law, and Law

  • Abstract

Informations and abstract

Keywords: Precedent; Rule; Common Law; Concept of Law; Judges.

The paper examines Fred Schauer's theory of precedent - the most perspicuous example of the conception of precedent as a rule. His theory is made of a set of redefinitions which partially differ from ordinary usages of the term "precedent". The paper compares such a conception with the evolution of common law. In doing so, it underlies that this conception was established only in the XIX century, in correspondence with Codification on the Continent. By taking history more seriously than Schauer does, the paper then goes on to challenge his idea that the legality of precedent depends on its nature of being a "rule": quite the opposite, if it is the judge, and not the legislature, who embodies the paradigmatic legal institution, then the legality of precedent depends on its "judicial" character.

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