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for: Facebook X RSS Jurisprudence Jotwell The Journal of Things We Like (Lots) Meet the Editors Select Page The Powers of Precedent May 1, 2024 Andrew Halpin Add a Comment María Beatriz Arriagada, The Two Faces of Precedent: A Hohfeldian Look , 37 Ratio Juris. 25 (2024). Andrew Halpin The common practice of teaching law students the rules of precedent is a misguided one, if we take seriously what María Beatriz Arriagada has to say in her article in a recent issue of Ratio Juris . InThe Two Faces of Precedent: A Hohfeldian Look ,” Arriagada offers a radical alternative to the conventional portrayal of precedent as a system of regulative rules. Arriagada’s article stimulates and provokes across a range of issues. Commencing with a preliminary reflection on the nature of analytical legal philosophy/theory (Pp. 25-26), she offers a number of insights to challenge assumptions made on the way the practice of binding precedent works, in developing her own structural analysis of precedent. At the same time, Arriagada draws on a sophisticated understanding of the Hohfeldian analytical scheme in her efforts to bring precision to a detailed analysis of the actual workings of precedent. Her preliminary reflection focuses on a role for legal theory in refining specialized legal discourse through removing defects and revealing concepts assumed within it. Applied to her current topic, this amounts to confronting certain distorted representations of binding precedents” as well as making explicit … the idea of bindingness” (P. 26.) The use of the Hohfeldian scheme to aid this task is a reflection of a resurgence of interest in Hohfeld’s work, now more than one hundred years after his death (see Wesley Hohfeld a Century Later: Edited Work, Select Personal Papers, and Original Commentaries ). This has included taking Hohfeldian analysis to new areas of interest, and, in particular, adopting the fuller resources provided by Hohfeld once the final four of his conceptions, centring around legal power, are included. Timothy Liau has recently revealed how a proper acknowledgment of Hohfeldian powers can illuminate our understanding of the doctrine of privity, in his book Standing in Private Law . In her article, Arriagada provides a rigorous analysis of binding precedent through her account of the legal powers that are involved in the practice. Despite being critical of the rule model” of precedent, Arriagada’s purpose is ultimately constructive–offering a contribution to [its] reconstruction” (P. 29.) Fundamental to this enterprise is the recognition that since invalidity of a judge’s decision is a standard consequence of a failure to follow a binding precedent, it follows that the practice of precedent cannot be composed entirely of regulatory rules, since a failure to follow these would provoke a sanction (P. 28.) In discussing existing approaches to precedent, Arriagada notes an analysis in terms of two powers: (i) the power of tribunal X to make a binding precedent, and (ii) the power of tribunal Y to apply a precedent (Pp. 32-33.) She criticizes the concentration on power (ii) here, for regarding this alone as sufficient to explain binding precedent. Instead, she insists (Pp. 34, 36) on recognizing the correlative to the power of tribunal X in (i), namely, a liability in tribunal Y. Subsequently, the liability of tribunal Y is investigated and amplified. The two faces” of precedent amount to the power of tribunal X and the liability of tribunal Y in (i), but the full understanding of precedent only emerges once the implications of tribunal Y being under a liability–that the legal situation of tribunal Y will be modified each time tribunal X exercises its power to dictate precedents” (P. 37)–are understood. Two possibilities for the way in which the modification of the legal situation of tribunal Y may occur are considered by Arriagada in some detail (Pp. 38-42): Y being under an obligation to follow the precedent of X; Y being under a power to rule on the positions of the individual parties in the case before it by applying the precedent of X (and concomitantly under a disability to rule on the case contrary to the precedent of X). Although she stresses that the two possibilities are not mutually exclusive (P. 38), it is clear that, for Arriagada, in dealing with the practical outworkings of a system of precedent (P. 39), a modification through obligation, resulting in a sanction for breach, is less likely. In contrast, the modification through power has as a consequence of neglecting to exercise the power (and straying into disability) the invalidity of Y’s ruling on the case before it that ignores the binding precedent of X. In this way, Arriagada is able to offer a structural reconstruction” of the rule model” of binding precedent. One that departs from an account in terms of regulative norms and provides proper recognition to the constitutive norms (or power-conferring rules) involved (P. 42.) This is a major achievement, which should stimulate further work on the nature of precedent. She admits that the present work deals exclusively with binding precedents and does not address non-binding precedents, nor the practices of distinguishing and overruling precedents (P. 30.) Neither is she concerned with the positions of other bodies who may have a role in controlling the exercise of precedent, employing oversight powers” (Pp. 35, 38, 40, 42.) Nevertheless, an important implication of the work undertaken here is that these related subjects may well benefit from a theoretical approach that is open to the fuller resources offered by Hohfeld’s analytical scheme–specifically, his analysis of legal powers. Cite as: Andrew Halpin, The Powers of Precedent , JOTWELL (May 1, 2024) (reviewing María Beatriz Arriagada, The Two Faces of Precedent: A Hohfeldian Look , 37 Ratio Juris. 25 (2024)), https://juris.jotwell.com/the-powers-of-precedent/ . In Defense of Archimedes Mar 21, 2024 Felipe Jiménez Add a Comment Pablo A. Rapetti, A Critique of Strong Anti-Archimedeanism: Metaethics, Conceptual Jurisprudence, and Legal Disagreements , 200 Synthese 111 (2022). Felipe Jiménez Argentina has a long tradition of excellent legal philosophers, including Carlos S. Nino, Carlos Alchourrón, and Eugenio Bulygin. Pablo Rapetti is part of a younger generation of Argentine legal philosophers that is continuing this rich tradition. This is one of his first scholarly works available in English. In this paper, Rapetti confronts Ronald Dworkin’s Anti-Archimedeanism and its application to general jurisprudence. As Rapetti explains, Dworkin’s Anti-Archimedeanism is a rejection of the distinction between first-order normative language and second-order, neutral meta-languages we could use to explore the first-order language theoretically. In simple terms, it’s impossible to go meta:” any debate about ethics, is a first-order moral debate. All metaethical theories occupy the same space as first-order moral theories. Rapetti does a wonderful job setting out the (strong) Anti-Archimedean position in metaethics, 1 as the conjunction of three claims: (i) ethical reasoning is autonomous and first-order ethical claims can only be justified by reference to other first-order moral claims; (ii) the aim of metaethical theories is vindicating or debunking first-order ethical thought on the basis of purely metaethical considerations; and (iii) every metaethical statement can be translated into a (or a series of) first-order ethical statement(s). The implication of Anti-Archimedeanism would be that there is no real distinction between first-order ethical claims (such as murder is wrong ) and second-order metaethical claims (such as moral statements express non-cognitive attitudes ). Rapetti’s paper also offers reasons why we ought to reject Anti-Archimedeanism. As he argues, one particular problem is that Anti-Archimedeanism has no limiting principle (or, at least, no limiting principle proposed by Dworkin): it...