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11,J a u th c>r i ty <>f prc<;c<Jcnt.

.
.
h
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a

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tc t1att1rc

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1') ' '

rfjft1

J.

l''1'Jtf*ma 1'1f7

10

Gerald]. Postema

beliefs about) that practice. While our conception of precedent is a

reflectio11 of our practice, that practice is pervasively influenced by
the way participants in the practice, professional and lay alike,
conceptualize the practice. Second, our contemporaryr practice is
the product of a long history both of immediate practical

adjustrnents to new circumstances and of theoretical reflection,

so1netimes of great sophistication, on the practice. Third, while the
notio11 of precedent is pivotal i 11 Anglo-A1nerican legal practice to
this day, it is not theoretically primitive. In fact, it gets its shape and

content from jt1risprudential commitments concerning, for

example, the nature and basic tasks of law, the nature of practical

reasoning or j11dgn1ent, and tl1e nature and practical force or

authority of (a society's) l1istor
The present essay is rnotivated by the conviction that we can
deepen our understanding of our contemporary conception (or,
perhaps, conceptions) of precedent, and its problems, if we uncover

iJ

its roots, both historical and philosophical. A pivotal period i11 the
formation of modern Anglo-American j urisprudence was the
period in Britain from the late seventeenth century to the mid
eighteenth century. At the risk of oversimplification, I shall focus
attention here on three major figures of British legal theory in this
1
period: Thomas Hobbes, Sir Matthew Hale, and David Hume.

Hobbes, in the course of his powerful attack on Coke's defence

of common law doctrine,2 articulated what may be the dominant
strand in our contemporary notion of precedent. In response to
Hobbes's attack, Hale penned a short, fragmentary, but richly
suggestive defence of Coke's doctrine. 3 This, when read in
conjunction with his History of the Common Law,4 yields a classic
statement of a sharply contrasting co11ception of law and precedent.
Hale's defence, however, is ambiguous, and was itself influenced by
Hobbes's argument. Thus, there are also seeds of a compromise or
1

The present essay is based on the first six chapters of my Bentham and the
Common Law Tradition (Oxford, 1986) (hereafter BCLT). The readings of Hale,
Hobbes, Hume, and Bentham, and the place of each in the common law tradition,
on which I rely in this essay are defended there.
2 Especially in T. Hobbes, A Dialogue between a Philosopher and a Student of
the Common Laws, ed.]. Cropsey, (Chicago, 1971).
3 Sir Matthew Hale, 'Reflections by the Lrd. Chiefe Justice Hale on Mr. Hobbes
His Dialogue of the Lawe', in Sir William Holdsworth, A History of English Law
(7th edn_. Lond_qn, 1956), i. 499-513.
4 Sir Matthew Hale, A History of the Common Latu, 3rd edn. C. M. Gray

(Chicago, 1971).

11

Some Roots of our Notion of Precedent

hybrid conception of precedent in Hale's 'Reflections'. This

. co1npron1ise conception was later enriched and defended by Hume.
Each of these three conceptions seeks to explain the legal status
and justificatory force or authority of past jL1dicial decisions. Each
gets its distinctive shape from deeper views regarding the nature of
la w, practical reasoning, and l1istory. The aim of this essay is to give
a philosophical interpretation of these conceptions of precedent
and to situate them in their larger theoretical contexts. This project,
even if successfully prosecuted, will not by itself illuminate our
contemporary conception(s) of precedent, but it will make an
important step in that direction.
I. THE POSITIVIST CONCEPTION OF PRECEDENT

intense c cern in seventeenth-century Britain. This is clear from

the epigraph to this essay.5 While precedent was sought by some to
take the place of a reason that appeared 'too large', others insisted
that the authority of precedent lay only in its conformity with a
reason that transcends it. Coke, speaking in defence of common
law doctrine, sought to equate law and precedent with reason.
'Reason is the life of the law,' he declares with typical bravado, 'nay
Common Law itself is nothing else but Reason' .6-....J.
Hobbes opens his Dialogue agreeing with Coke's assertion.
However, he immediately adds that, as a result, 'I find my own
reason at a stand', because this truth threatens to undermine the
authority of law. For 'upon this ground any Man, of any Law
whatsoever may say it is a gainst Reason, and thereupon inake a
pretence of his disobedience' (Dialogue, pp. 54-S)[To equate law
with reason is to give warrant to each person's judgment of the
requirements of reason, and this, in Hobbes's view, is not only
dangerous, it is self-cont radictory. For law, he insists, is not
'philosophy'

that is, its dictates are not indefinitely disputable,

nor are its doctrines always open to reconsideration and reformul

ation

rather, law consists of commands or prohibitions the

contents of which are (intended to be) indisputab(U.alogue, p.

69) It is not Wisdom, but Authority that makes a Law' 1Dialogue,

p. 55).

5 Quoted in C. Hill, The Century of Revolution (Edinburgh, 1961), p. 179.

.
6 Sir Edvard Coke, Institutes, i, sec. 138; quoted by Hobbes, Dialogue, p. 54.

12

Gerald]. Postema

Coke, of course, had a ready solution to this dilemma. The

reason of the law, he maintained, is not the natural reason of each
individual citizen, but rather that 'artificial perfection of Reason'
acquired by long study, observation, and experience . 7 But Hobbes
quickly dismisses this proposal, i nsisting that 'there is no Reason in
Earthly Creatures, but Humane Reason' ( Dialogue, p . 5 5). There is
nothing special about the reason of lawyers and j udges; it is simply
natural reason, which every competent person can exercise, applied
to the subject of the laws ( Dialogue, p. 62). And, he adds, any
competent person could master the law (to the extent it can ever be
mastered) within two months (Dialogue, p. 56).
Hobbes's solution to the puzzle with which he opens the
Dialogue is to equate law with neither the reason of individual
citizens nor with some fictitious artificial reason of the law (or of
the legal profession), but rather with the natural reason of the
sovereign. The 'Kings Reason, when it is p ublickly upon Advice,
and Deliberation declar'd, is that Anima Legis, and that Summa
Ratio, and that Equity which all agree to be the Law of Reason, is
all that is, or ever was Law in England' (Dialogue, p . 62). Law, then,
is reason not artificial reason, but 'the Reason of this our Artificial!
Man the Common-wealth, and h is Comma nd'. 8
Why take the sovereign's reason a s 'right reason', the standard of
reason and right? Because, Hobbes argues, there are n o universally
accepted standards of reason, and if each individual acts on his or
her own lights the inevitable result i s the i ndividually and
collectively disastrous 'war of all against all' . The o nly escape from
this condition is for each to recognize the self-defeating character of
the demand to j udge all m atters according to h i s or her own lights,
and to take up the reason, j udgment, and w ill o f the sovereign . 'The
law', he argues, 'is all the right reason we have.' Because
neither mine nor [anyone else's] ... reason is right reason fit to be a rule of
our moral actions, we have therefore set up over ourselves a sovereign
governor, and agreed that his laws shall be unto us, whatsoever they be, in
the place of right reason . .9
.

Dialogue; p.55, quoting Coke, Institutes, i, sec. 138.

8 T. Hobbes, Leviathan, ed. C. B. Macpherson (Baltimore, 1968), p. 317.
9 T. Hobbes, Questions Concerning Liberty, Necessity, and Chance, in The
English Works of Thomas Hobbes, ed. Sir William Molesworth (London, 1839), v.
194.In the Dialogue Hobbes asks, 'Would you have every Man to every other Man

alledge for Law his own particular Reason? There is not amongst Men an Universal
Reason agreed upon in any Nation, besides the Reason of him that hath the

o
s
o
o
f our Notion of Prece
t
R
e
m
o
S
dent
u s,

,ll

coillPe

an

orit at1v e y declar

e

or at east have
an ar o reas
on
.
'
is
n
o
ot erwi se
.
.
ou r k i g it so by
our approb at ion

of it

13

.
b
a
h
t
t
h
g
ri

y
l
n
!
i
a
t
r
e
c
an

ance ,

'

p.

.
193).
ex
th
p
e
re
ss
n
io
,
n o f th e so v er eign '
th
e
w
is
'
La
s 'nat ura 1 reaso n' .
.
n
co
o
1s
t
u
n sel!, b u t C o m m an d
ra
ll
en
e
,
g
w
in
. (Levza
than, p.
'La
r
a
it
u
a
t
h
t
iv
o
e
a
,
n
p
e
r
is
e
m
p
to
r
It
y
directive to action. As
2
).
31
.

e,
at
iv
ri
t
o
auth

th e fa ct of th e law 's h aving b ee

n declared

in
te
n
is
d
e
it
to
d
re
ry
cl
,
d
p
e
to
independent delib eration
em
r
pe
p

m
er
of
it
th
s
e
ac
th
ti
e
on
s
ng
in question by th os e who fall
rd
i
a
reg
1
0
rule.
the
under
Alth ough H ob be s hi m self w as co nt em ptuous of the prevailing
notio n of pre ceden t, his the ory pro vid es the materials for a

distin ctively posi tivis t inte rpre tatio n of this notion. All law is
command, and all law -ma king auth ority rests ultimately in the
sovereign, but the sovere ign delega tes his authority (either explicitly

or implicitly) to the courts . Where the law is silent, where there is

po directly dcla rec! will .of the soyereign, j11dges are a11rharized to

'0"c
w

in the course of
cases. I n doing so judges mimic tfi e

1ieclr-1aw iii'Ji'

->"+

...

a<l]udicating particu lar

sovereign.
rou_
e__exeis
. wo.:O:ifiital:reas.o *''tn ''te ,.
cous e of dec idin g the .12ar ticu lar case s they esta blis h new ru les of
.
law, rules whic h a re there b.Y autho ritati ve an
ereIU.PtOtX- lll th e
_
same wa.Y as the sovereign' s commands are.
i1cli m ay ha ve ha d the
1
Bentham 's co nc ep tio n of pr ecedent, w
.
greatest im pa ct on th e de ve lo pm en t of ou r contemporary notion,
.
relie s heavily on th is H o b be si an account, although with one
.

Sovera1gn Power; yet thro ugh his Reason be but th e Reason of one Man ' yet it is set
o)
i
.
P
4
so
al
e
se
,
67
P
up to supply the
e,
gu
lo
ia
(D
place of th at U n iv ersal Reason'

io

e
it
t
e
p
p
a
r
u
o
r
e
h
t
o
n
a
o
t
y
t
signi
we
.
h
[C]ommanding ...is that speech by wh1c
will
the
in
d
e
1n
.
a
or
. des1r
e to have anything done, o r left und one, f or rasons cont
Stet
'
clause
her
ot
at
h
t
ut
itself for it
witho
beo
'

JU
1s not prope rly said Sic
vo zo, sic
'
13

eh
'
1

v
1

Pr0 ratzone voluntas .. . (Hobbe' s Human Nature, in Moleswort 11, vo

'
Hart
A
L
H
'
see
sec
d
mman
co
f
'C 6) F or a discussion of Hobbes's notion
a
.
Ben
t
h
m
on
s
ssay
E
,
rt
a
H
in
m mands and
'
n
so
ea
3.

thoritative Legal R
sec.
u
A
9,
eh.
.
T
'
BCL
10xford
e
se
ew
vi
, 1983), p. 253. Fo r Be ntham's contrasting

14

, 1-

zld ]. Poste111c1

i111po1rant diffei i1ce: tl1e contr 1c tt11l vol untaris111. of Hobbes's

c1ccot1nt of tl1e prc1cticc1l autl1orit)' of llw (1nci p1e ede11t) d 1 <) p s our.
Bentl1a111 foct1 es exclt1 i\rely ()t1 certai11ty at1d respect for expect

at1011s.
Judi ial decisio11s, sa)'S Bentl1a1n, are strictly spea. k i11g parti
cula1 . To tl1e extent tl1at tl1ey have 'somewhat of the effect of laws'
it is due to the fact tl1at tl1e decisio11s are u11derstood authoritatively
to la) do\;vn ge11eral r11 les of law. T11ese rules must be extracted
from the particular decisio11 by a process of 'abst1action'. Common
1
law rules are 'inferential'; 1 tl1ey are propositio11s which 'appea1 to
be the just expressio11 of judicial practice i11 like cases'.12 The
practical force of the rules extracted fron1 p rior decisions, Bentham
insists, rests exclusively on tl1e fact th at these rules were establisl1ed.
'Why should decisions be unifor1n?' 11e asks. Not because the rule
en1bodied in the 01iginal decision 'ought to have been establisl1ed,
but because it is established' .13 'The deference that is due to the
deter1nination of forn1e1 jt1dgn1ents', l1e says echoing Hobbes, 'is
dt1e not to tl1eir wisdom, bt1t to their autho rity' (Comment, p . 196).
The task of law, on Bentham's view, is to defi11e a stable f1amework
of publicly recognized rules which p1ovide a focus for expectations
regarding the behaviou1 of both citizens and offi cials, and thereby
successfully co-ordinate all such behaviour. Thus, whether or not
the rule is reasonable is 'a rela.tively trifling matter' .14 Deference
must be given to established rules independent of consideration of
their merits because 'the course of expectation was fixed by the
general rule' (UC Lxiii, 49). 'The reason that pleads for the
uniformity of decisions, is the same that pleads with equal force for
their notoriety . .. [viz.,] that p ublic expectation may know what
course it has to take' (Comment, p . 196).
We can now summarize the central featu1es of this positivist
cgception of precedent. On this conception precedential cases
stand
for
or
embody
general
rules
(the
rules
are
'derived
from'
o
r
. .
.

11

J. Bentham, Manuscripts, University College, London (l1ereafter UC), Box

lxix, fol. 164.

12 UC c, 98. Bentham often regards this process as entirely mysterious and
'metaphysical'. See Of Laws in General, ed. H. L. A. Hart (London, 1970), eh. 15,
para. 2, and B CLT, eh. 8, sec. 3.
13 ]. Bentham, A Co1nment on the Commentaries (hereafter Comment), in A
Comment on the Commentaries and A Fragment on Government, ed. J. H. Burns
and H. L. A. Hart (London, 1977), p. 197 n. c.
14]. Bentham, Fragment on Government, in A Comment on the Comme11taries
and A Fragment on Government, p. 409 n. p.; Comme1it; pp. 114-5, 203.

our
Notion
o
o
oots
f
f Precedent
R
1e
50,.1

II. THE TRADITIONARY CONCEPTION OF PRECEDENT

/

{pvt.l trl
i

(
'\
I :' !Y)

Jtv. f11 '"o/)

"

th
eo
ry precede
st
po
sit
ivi
_ nt is derivative in two respects:
sic
al
cla
s
In
(1) its proper role is only to fill gaps in the law where the declared
legislative will (in code or statute) is silent, and (2) the nature and
forc e of the precedent case is understood on the model of statute
1'1!V It is not surprising that this conception of precedent generates

worries about the grounds and limits of 'judicial legislation' and in

response generates demands for a rather strong doctrine of stare
decisis. Classical common law theory, in contrast, was far less
preoccupied with such concerns because these worries presuppose a
conception of precedent and of law generally which is at odds with
traditional common law theory. Far from being derivative, judicial
precedent was pivotal in this conception
he common law of England, it was said, 'is nothing else but the
Common Custom e of the Realm . . . consisting in use and practice',
handed down by tradition and experience, and 'recorded and
.
.
1
16
registe red no-where but in the memory of the peop e . But this
traditional theme, sounded by Davies and Coke in the seventeenth
century, and relayed and amplified by Blackstone in the eighteenth,
is problematic on its face. For the common law is, of course, found
written and recorded in the law reports, and, more importantly,

Q:'

'

St ric ly speaking, Be nt ha m never he ld this strongly peremptory view of rules,

t
15
C L T, eh. 6, sec. 3 an d eh . 9, sec. 3.
,
.
.
S1 John Davies , Irish Reports (1612), 'Introducti on , quoted by J A _G3

. dge, 1 957

32
PP
mbr
),
(Ca
i
n
Law
l
uda
i
Fe
The
s
the
ient
Anc
Con titution and
Pocock

sep

16

Gerald]. Postema

these are reports not of the customs of the people but of the custom
of the courts (custom in foro, not custom in pays, Bentham woul d
say, Comment, pp. 182, 308-9) . Furthermore, many of these
'immemorial customs' can in fact be traced to legislative action of
the Sovereign or Parliament. 17
But Sir Matthew Hale, perhaps the most sophisticated defender
of common law theory in this era, made clear that to say law is
common, immemorial custom is not to make a claim about its
recorded form, or its objective historical origins, but to make a
claim about its essential nature and its foundations or authority.
The doctrines of common law, said Hale,
are grown into use, and have acquired their binding Power and Force of
Laws by a long and immemorial Usage, and by the strength o f Custom and
Reception in this Kingdom. The Matters, indeed, and the Substance of
those Laws, are in Writing, but the formal and obliging Force and Power of
them grows by long Custom and Use. (History, p. 17) ..._

'

That is, the law now exists and has its authority, its 'formal and
obliging Force', by virtue of general use and acceptance. The law
reports, on this view, are the public record of this use and practice,
having recorded the decisions, actions, and opinions of those most
extensively involved on a daily basis with all segments of it
('Reflections', p. 503). On this view, both the meaning or normative
content and the authority of the precedential case rest on its being
recognized as an integral part of the collective experience (or
'wisdom') of the community, of which the law is the repository.
Legal precedent is simply the formal memory of the people.
Thus, it appears that both classical positivism and classical
common law theory hold that the authority of precedent ultimately
rests on acceptance, but they differ greatly on the conceptual
texture and focus of this acceptance. The most striking difference is
that acceptance according to traditional common law theory rests
on a conviction of the reasonableness of the law, rather than on the
reasonableness of submitting to the law independent of its merits. It
would be a mistake, however, to regard this common law view as
simply a version of classical natural law theory. The conviction of
reasonableness of the law does not rest, as in classical natural law
theory, on the conviction that the law conforms to some set of
17

Bentham thought this was an especially devastating criticism of the pretensions

of common law theory. See Comment, pp. 165-80.

::
.
. .
.

'

So1ne Roots of our Notion of Precedent

17

transcendent sta11dards of reason or justice (or standards which are

disti11ct from and rationally prior to positive law and custom). It rests,
rather, on two other convictions: ( 1) a sense of the historical

appropriateness of the precedent a11d of the body of law as a whole,

and (2) the belief that its component decisions are the products of a

1;
.

(;
.

...,

.
..

..

';

'

::
.

;
,

.
.

disciplined process of reasoning and reflection on cornmon experi

ence. Let me expand briefly on each of these points.
First, consider the historical dimension of this conception of law .

In English law, according to Blackstone, 'the goodness of a custom

1
depends upon its having been used time out of mind' . 8 Although
Coke seemed to think that the authority of the common law rested
on the possibility of tracing its rules and maxims all the way back to
1
Saxon (and even Roman!) times, 9 Hale expressed the dominant
and more plausible view. In many cases, he admitted, it is
impossible to trace particular portions of the present body of law
back to their origins. Often the only evidence we have of these
origins is itself traditional, internal to the system we are trying to
validate historically. Moreover, the law is in constant process of
change and development, of decline and rebirth. Hence, there is no
pl ausible ground for the claim that the law is in any substantial part
identical to the law of the Saxons. Nevertheless, Hale insisted, it is
still the same body of law. The key is not identity of components
but a recognizable continuity with the past. Despite the inevitable
variations over the centuries, it can be justly said that 'they are the
same English Laws now that they were six hundred years [ago]' just
as 'the Argonauts Ship was the same when it returned home, as it
was when it went out, tho' in the long Voyage it had successive
Amendments, and scarce came back with any of its former
Materials' (History, p . 40).
But it is not clear within common law theory how we are to

understand this alleged historical dimension of the law. Frequently,

the long persistence of the law is called upon as witness to its
'wisdom'. Law is, as Blackstone put it, 'the accumulated wisdom of
the ages' (Comm. i. 442) . The laws, according to Coke, 'have been
by the wisdom of the most excellent men, in many successions of
ages, by long and continual experience, (the trial of light and truth)
18

i...)
;J

:
,

-:
:i.
}
,.

..

19

W. Blackstone, Commentaries on the Law of England (hereafter Comm.), i. 67.

See D. E. C. Yale, 'Hale and Hobbes on Law, Legislation, and the Sovereign',

(1972) 31 Cambridge Law Journal, 127, and references at n. 33.

18
fined and refined

Gerald]. Postema
. . .'20

Subjected to 'the trial of light and truth', the

law has been constantly though incrementally readjusted to the

complexities of civil life, approaching a degree of perfection
achievable only by a succession of many generations. While Coke
likes to stress the 'wisdom' of those 'most excellent men' who shape
the law over the years, Hale more soberly observes that 'long and

iterated experience [itself] ... is the wisest expedient among

mankind', because it 'discovers those defects ... which no wit of
man could either at once foresee or aptly remedy' ('Reflections', p.
505). History, so regarded, is the only available laboratory for civil

life, and in it we prove those ways which are most wise and just.
This, of course, suggests that there is a standard of reason or
justice independent of common custom and the historical evolution

of civil life which, however, may be discovered and approximated

only through this historical evolution. But there is another
understanding of this historical dimension (of this 'wisdom') of
common law which, while apparently incompatible with the
former, seems to exist alongside it. It is the source of the
distinctively traditionary conception of precedent.

According to this alternative view, the 'wisdom' or goodness of a

custom is demonstrated over time, through this process of
refinement, because through this process the rule or practice is
accommodated to the 'frame' or 'disposition' of the nation, 'such as
by a long Experience and Use is as it were incorporated into their
very Temperament, and, in a Manner, become the complection and
Constitution of the English Commonwealth' (History, p. 30). The
process of accommodation is two-sided. The rules, at first rough
and clumsy, are broken in over time, their hard edges smoothed off

and softened to fit the contours of community life. At the same

time, Hale clearly maintains, participating in the practice described
by the rules shapes the dispositions, beliefs, expectations, and
attitudes of the people. Thus, what counts as reasonable in large
part depends on what can be regarded as continuous with the past
history of the people and its law, and what can be regarded as

continuous with that past in large part depends on what can be

regarded as reasonable projections from laws and arrangements of
the past to problems and situations of the present.
Thus, the conviction of the authority or 'wisdom' of the law rests

20

Sir Edward Coke, Seventh Reports, Calvin's Case, eds. Thomas and Fraser
(London, 1826), iv. 6.

Some Roots of our Notion of Precedent

f
1

19

on the sense that the rules and practices of the con1mon law at
present are continuous with and expressive of the common life and
history of the people whose law it is (History, pp. 40-3) . The
historical dimension of the law contributes to the authority of law,
not because of its demonstration of the law's likely trutl1 or j ustice,
but because of its links to the people's sense of civic identity. This is
a history which situates individuals in their community and relates
them to each other by directing each to a received, recognized, and
shared collective past. The law, then, is thought not only to define a
framework for social interactio11 a set of rules and institutions
facilitating orderly pursuit of private aims and purposes but also
to articulate publicly the social context within which the pursuit of
such aims takes on meaning for members of the community. Law is
the reservoir o f common ways and experience expressive of the
nature and will of the people themselves. Arising from custom and
confirmed by long usage, the law is 'incorporated into [the] very
Temperament' of the people and has become the 'Constitution' of
the commonwealth.21
Second, the acceptance of law according to classical common law
theory rests on a conviction that, unlike statute law, common law is
the product o f a disciplined process of reasoning and reflection on
common experience.While Coke often declared that 'Reason is the
life of the law', 22 he was always quick to add that 'this is an
artificial perfection of Reason gotten by long study, observation,
and experience'. 23 In his 'Reflections', Hale defends this doctrine of
the 'artificial reason of the law' against Hobbes's attack in the
Dialogue.
Hale allows that there may be a fixed and rational order of
nature and of the a ffairs of men, and a human faculty of reason by
which, at least in principle, the reasonableness of this order can be
grasped. But in morals and especially in comm0n public affairs 'the
objects thereof are more obscure, and not so open to a distinct and
clear discovery' ( 'Reflections', p. 5 0 1 ). Law, he insists, is a proper
subject for the faculty of reason, and it constitutes a specialized
body of knowledge like any other. But its subject-matter, the
'ordering of civil societies .. . [and] measuring of right and wrong,
21

Hale, History, p. 30. See also Blackstone, Comm. i. 17-20 and Comm. iv.
407-43 for similar sentiments. Discussed in BCL T, eh. 2, sec. 3.
22 Coke, Seventh Reports, p. 7; l11stitutes, i, sec. 138.
23 Coke, Institutes, i, sec. 138.

Gerald]. Postema

20

ch
re
mu
mo
is
istant to
res
',
ars
cul
ti
par
to
.
r at1o
. n I
w hen 1r comes
a
.
b'
t
h
on
t
ra
an
st
on
i
m
y
de
an other
in
rta
ce
d
an
s u Jeer
structuring
2
0
5
,
).
s

P
'
n
io
ct
.
le
ef
('R
.
y
it
ex
pl
t
m
ea
co
gr
of
e
th
tu
to
si
,
rt
pa
ations ea
in
,
e
Th1s is du
.
.
.
11.in

ct
(
s
e
ce
fl
n
e
a
R
st
s
m
n
u
io
rc
ci
,
to
p
d
. 504).
o
o
g
n
o
m
m
co
and
But
ra l law, or at le
tu
na
of
ce
en
sil
e
t
s
me
bla
Hale also
ast the
.
.
t
en
em
re
ag
on
y
an
its
g
1n
ev
h1
ac
requir emen
of
ty
ili
ib
ss
impo
ts
.
n
I
.
al
ulas
mor
orm
ty
affa
emp
and
irs, especial
ract
abst
nd
beyo
ly
ough
all
alth
men of reason sh
ity,
mun
com
a
for
laws
regarding
ar e

immediately lost when they move from abstr actions to partic ular s.
This is true even among men of great reason and learning.24 And
further reflection and speculation lead to more, not less, disse nsus.

Thus, schoolmen and moral philosophers make the worst j udges,

he argues, 'because they are transported from the ordinary
measures of right and wrong by their over-fine speculations,

theories, and distinctions above the common staple of human

conversations'. The best judges are 'men of observation and

experience in human affairs and conversation between man and

man' ('Reflections', p. 503 ) . If we remain at the level of rational

speculation, without taking into consideration the vast body of

shared knowledge and experience which makes up the 'language' of

human affairs, we can only expect perpet ual dissensus, uncertainty,

and insecurity, Hale insists. Comm on law, however, is the

repository of this accumulated collec tive experience, the dictionary

of this language of human intercourse. Throu gh long immers ion in

it not (or not only) grasping its gene ral prin ciple s, but acqui ring

t
familiar knowledge of its vast particulars
flue
n
e
bec
om
one can
in the common language of hu ma n affairs, and thereby deal justl y
nd reasonably with them. Th us, aga ins Hobbes he con cluds,
t
e
men are not born Common Lawyer
cis
exe
r
s, nei the r can the bare
.
it
of the facu ty of reason give
t
u
it,
a man su ffi cie nt kn ow ledge of
.
must be gained by the
ist
n
xe
r
e
ha bi tu at in g an d ac cu st om in g and

that faculty by reading,

'
on
s
cti
fle
study, an d ob se rv at io n .. .' ('Re
p. 505 ).

f
The strong suggest
0
se
ri
ion of this di sc us si on is th at the enter p

24

the
d'
in
s
'Reflections' p.
te
503 BIackstone argues
1cta
law
that natural
formula'
Just1n1an
'
, But
r
e
t
'hone
ibu
e
.
t
e
r
s
e
k
er
e,
vz
v
ter
a
/
cu
um non laedere, suum 1
he insists that we'can
an
rnY
d
.
now \Vhat is to be reg rd d
har
1
le
'ho
nor
ab
,
a
e
m'
as
or another's ,own
on Y through the
la w (Comm. i. 53) .

Some Roots of our Notion of Precedent

21

jurisprudence (i.e. of judicial prudence or judgment) is not the

enterprise of rational discovery of general principles by way of
abstraction (or 'induction') from cases or decisions and application
of these to new cases, but rather the enterprise of making concrete
judgments from a comprehensive grasp of the concrete relations
and arrangements woven into the fabric of common life. What is
learned through the long process of 'study and observation' are not
sets of rules, more or less systematically ordered, but a capacity to
judge reflectively on the basis of the particular features of cases,
features which gain significance in virtue of being read against a
larger context of common social life and human 'conversation'.
The metaphor of language which Hale invokes is especially apt.
For, like linguistic abilities, the capacity for reflective judgment is,
on this view, a learned social capacity. It is the ability to reason
from a body of shared experiences to new situations.Here we see a
link between this conception of practical reasoning and the alleged
'historical' dimension of law. To justify any particular judgment, to
demonstrate its wisdom or goodness, according to this view,
involves no appeal to transcendent or independent standards of
reason, but only a showing that the proposed arrangement is, or
comfortably fits into, a common way of life.' [T]he only method of
proving, that this or that maxim is a rule of the common law',
Blackstone reminds us, 'is by showing that it hath been always the
custom to observe it' (Comm. i. 68). This does not restrict us to
routinized repetition of past actions, for novel situations may call
for creative decisions. But to make decisions in such cases is to
exercise an essentially social capacity. That is, it is to judge what
one has good reason to believe others in the community would
regard as reasonable and fitting (where their recognizing the
reasonableness is in part reciprocally dependent on their recog
nition that one would so regard it). These judgments can be made
with confidence (though they are not infallible), not because one is
a good predictor of the behaviour of others in the community, or
because one has special insight into their thoughts and minds, but
si1nply because one understands at a concrete level the common life
in which we all participate. Just as to learn to speak a language is to
develop the social competence to produce and to recognize creative
uses of language,25 so too to become fluent in the language of
25

On this see R. Brandom, 'Freedom and Constraint by Norms', (1979) 16

American Philosophical Quarterly 194-5, and J. Rosenberg, Linguistic Representation (Dordrecht, 1974), p. 3 .

22

Gerald ]. Postema

'hun1an affairs and conversation' is to acquire the social capacity to

make judgments that even in novel cases one can be confident will
elicit recognition and acceptance as appropriate from the commun
ity. There is nothing mysterious or metaphysical in this notion of a
social capacity. It simply rests on the idea that some practices, and
the beliefs and attitudes blended into an interpretation of them, are
entirely common.
Since on this view adjudication involves a distinctive intellectual
capacity, a process of disciplined reasoning and judgment, and is
exercised within an established and recognized body o f knowledge,
judges are regarded as experts, and the authority they claim is not
the authority of office but the authority of expertise (or, rather, the
authority of this office purports to be grounded in the authority of
expertise).
Against the background of this traditionalcommon law concep
tion of law and adj udication we can sketch the main o utlines o f the
traditionary conception of precedent. ( 1 ) Past decisions claim
authority not in virtue of having been decided or settled, but in
virtue of having a place within a recognized body o f common
experience, being the product of a recognized process of reflective
j udgment exercised within this body of experience, which is itself
authoritative because o'-f -its historical links to a shared sense of
identity in the community. (2) Individual cases are not thought to
yield authoritative rules, but rather to illustrate the operation of
weighing reasons, to exemplify the process of reasoning within this
body of experience. (3) Rather than precluding deliberation and
reasoning in a new case, past cases invite and focus reasoning in
new cases on the model of reasoning employed in the prior case.
The task of the subsequent court is not to locate 'the rule' of the
previous decision and follow it as a rule, but rather to participate
with the prior court in its reasoning about the issues raised by that
case and to extend that reasoning to the instant case. Thus, ( 4) the
prior court's formulation of the issues and the reasons for resolving
them as it did are not final. Nevertheless, their formulations of the
issues and reasons must be given great weight, because the prior
court has claim to 'expert authority'. Judicial decisions, according
to Hale, 'do not make a Law properly so called', but 'they have a
great Weight and Authority in Expounding, Declaring, and
Publishing what the law of this Kingdom is . . . and tho' such
Decisions aie less than a Law, yet they are a greater Evidence

Some Roots of our Notion of Precedent

23

thereof than the Opinion of any private Persons, as such,

wl1atsoever'.26 Precedent cases do not in themselves constitute law
and judges do not make law or lay down rules. The legal
sig11ificance of past decisions resides in their status as examples of
proper exercise of the process of legal reasoning.
Is there room in this traditionary conception for the idea of
binding precedent? In a sense no, but in another (less positivist)
sense yes.It is true according to this conception that every court can
in principle refuse to follow decisions of another court (at the same
or lower level) which apply to the case before it when it thinks it
best to do so; when, that is, it judges the previous cou1t to 11ave
made a mistake.27 As Blackstone put it, echoing Hale, 'the law,
and the opinion of the judge, are not always convertible terms, ...
since it may happen that the judge may mistake the law' ( Comnt. i.
71). However, past decisions on this view are regarded as binding
in two respects: ( 1) past cases alone provide exe1nplars of proper
practical judicial reasoning, and (2) the e11tire body of such cases
provides the authoritative context of experience within which such
practical reasoning takes place and against which the practical
significance of the instant case is interpreted. Thus, while no single
precedential case is binding in the way the positivist conception
insists upon, it is clear that the traditionary conception implies a
notion of the authority of past decisions.
III. THE CONVENTIONALIST CONCEPTION OF PRECEDENT

In the preceding sections of this essay I have sketched out two

competing conceptions of the nature and force of precedent in their
purest forms. However, seldom in the history of British juris
prudence do we find one or the other of these conceptions operating
entirely in isolation from the other. It is far more common to find
accounts of precedent which more or less explicitly combine
elements from both conceptions.28 One such marriage, in fact, is
26

Hale, History, p. 45. See also Blackstone, Comm. i. 69 and Comm. iii. 327.
27 'Things introduced against the reason of law ought not be drawn into a
precedent.' (Coke, Twelfth Reports, p. 75.)
28 Blackstone, for example, while embracing many of the elements of the
traditionary conception, also asserts that 'it is an established rule to abide by former
precedents, where the same points come again in litigation: as well to keep the scale
of justice even and steady, and not liable to waver with every new judge's opinion; as
also because the law in that case being solemnly declared and determined, what

24

Gerald ]. Postema

suggested by Hale in his reply to Hobbes, and a more sophisticated

version of this view was developed by David Hume. For reasons
that will emerge in our discussion of Hume below, I shall call this
29
'
the 'conventionalist conception .
There is much in Hale to suggest the traditionary conception o f
law, and in particular its conception o f reason or rationality
internal to the body o f common experience. But in his reply to
Hobbes, Hale also suggests another perspective from which to
assess the practical reasonableness of the law, one which abstracts
from the question of the merits of the decisions themselves and
focuses directly on their having settled contested issues. While 'a
certain and determinate law may have some mischiefs in relation to
particulars, ' he says, such a law 'is preferrable before that arbitrary
and uncertain rule which men miscall the law o f reason' ('Re
flections ' , p. 503 ) . Despite the fact that Hale clearly has Hobbes's
notion of ' natural reason' in mind in the second clause, the thought
expressed is surprisingly Hobbesian. As we have seen, Hale, like
Hobbes, observed with concern the potential for widespread
dissensus wherever citizens appealed to private judgment in civic
affairs. It is not implausible to see Hale relying implicitly on an
argument similar to Hobbes's at this point. If social interaction is to
be possible, he seems to argue, there must be some common way of
acting around which interaction can be co-ordinated. In the
absence of agreement on the independent merits o f possible
alternatives we are forced to accept that pattern which we can be
most assured others, on whom the success of our action depends,
will accept and follow. The most important property we demand of
laws, on this view, is that they be certain and settled. This is
precisely the conclusion Hale draws at this point.
Though perchance at first the makers of them saw reason to pitch upon this
institution rather than an other, yet in things thus settled it is not necessary
that the reasons of the institution should be evident unto us. It is sufficient
before was uncertain, and perhaps indifferent, is now become a permanent rule
whic it i not in th breast of any subequent judge to alter or vary from accordin
to his private sentiments . . . , To this he adds that exceptions to this 'rule of
precedents' are justified 'where the former determination is most evidently contrary
to reason' (Comm. i. 69).

29

Here I follow my usage in BCL T an d 'C oo rd in ati on and Co nv en tio n a t

th
Four.ida ti<;> ns of aw ', (1982) 11 Journal of Legal Studies 165-203 . The 'co n
,
ve nt1 onal1 sm I discuss here should not be confused wi th the doctrine dis cusse
d
. by Dwor k.1n 1n Law s Empire (Cambridge Mass. 1986)
under the same rubr1c
'
'
, cl1. 4 .

'

Some Roots of our Notion of Precedent

25

tl1at they are i nstitt1ted laws that give a certa inty to us, and i t is reasonable
for us to observe then1 though the partict1lar reason of the institution
appear

not. (' Reflections',

p.

505)

Hale boldly adn1its that it may be impossible to reconstruct a

st1bstantive rationale for mucl1 of tl1e a11cient law. But that does not

undermine it, he insists, for its legitimacy rests not on its intrinsic
merits, but on the sin1ple fact that it does the job of defining a clear
and settled 1ule of action and thus pro1nises successfully to order
social interaction.
One finds this argument immediately alongside other arguments
which stro11gly suggest the traditionary conception, but the notions

of law and especially of the nature and legal significance of

precedential decisions seem to be very different, perhaps even
incompati ble. Can the two be reconciled ? Hale makes no explicit
attempt to do so, though it is of some interest that he apparently felt
no pressure to do so. While Hale's argument may suggest to us
ecl1oes of Hob bes's argument, Hale did not think it committed him
to the Hob besian conception of law, precedent, or 'natural reason'.
Hale may well have been wrong about this, but it is worth
considering briefly whether there might be a way to comb ine the
quasi-Hob besian and traditionary elements into a coherent concep
tion of law and precedent.
Hale, we saw above, held that most of us are capable of grasping
and agreeing upon broad, general moral truths. But that beyond
this point the reliability of our individual rational capacities, and,
more importantly in the case of civic affairs, the possibility of
achieving some common agreement, are reduced greatly. Rational
deliberation regarding everyday matters of social interaction is not
possible outside the body of common experience.Hale might argt1e,
then, that while 'reason ' can lead us to conclude that it is practically
necessary for social life that we have a scheme of settled rules or
common ways, reason can never lead us to (agreement upon) a
specific set of such rules or ways.At this point Hob b es insisted that
we appeal to a sovereign rule-maker, whose commands will b e
clearly discernible, and peremptory. But Hale need not follow
Hob bes here.He could argue that the task of determ ining what is in
fact 'settled' is best accomplished not by a Hob besian judge who
appeals to sovereign commands or natural reason, but b y a
Common Law judge 'fluent i n the language of human affairs and

26

Gerald ]. Postema

conversation'. That is, Hale could rely on the traditionary

conception to tl1e extent that h e believes that greater success in co
ordination of social interaction can be achieved through the careft1l,
interstitial working ot1t of shared understandings of common ways
and practices, than through explicit creation of new rules and laws
from the detached positio11 of the sovereign legislator. 3 0 The task of
co-ordinating social interaction
not only between citizens, but
also between citizens and the judiciary
is inescapably contextual,

he might argue. Argu1nent fro111 a.nalogy to familiar past cases or

incidents or general features of shared social life is more likely to
succeed than creating a new rule which itself needs interpretation
.

before it ca11 efficiently guide actio11.

Although so1ne of the materials for this conventionalist concep
tion of precedent are available in Hale's re1narkable fragment, he
does not work out the conception. However, in Hume we fi11d a
conception along these lines developed with considerable sophistic
1
ation. 3 Hume sought a justification of the rules of p1operty wh ich

t
l

reveals the rationality of the co11crete, h istorically evolved institu

tions o f property with wh ich he was familiar. He admitted,
however, that for most of the positive rules of property known to
Roman and Scots Law and English common law no specific
rational warrant can be found. The principles o f first possession,
prescription, accession, or succession, h e held, c a n be traced only to
the operation of human 'imagination' and ' fancy ' . Thus, h e set out
to show that, although these principles are ' without sufficient
reason'

in themselves,

they 'j ustly become sufficient r eason[s] ' for

conforming to certain patterns of social behaviour.

30 Bentham, early in his career, suggested the view. While he typically argued that

the utilitarian principle is superior to all other practical principles becat1se of its
objectivity and the public accessibility of its arguments, he does suggest in an early
manuscript entitled 'Law Common vs Statute' that appeals to 'analogy' are superior
in this respect. Analogy, he says, 'is more easily agreed upon . . . [T]l1ose who are to
act in any new case may be better able to conjecture beforehand what is likely to be
the decision, and to order their conduct accordingly' (UC Lxiii, 49). Of course,
Bentham argued that clear sovereign commands in the form of statutory, or codified,
law are superior for purposes of co-ordination to both analogy and immediate
appeals to utility. See G. J. Postema, 'Bentham's Early Reflections on Law, Justice
and Adjudication', (1982) 1 4 1 Revue internationale de philosophie 233-7, and
more generally BCL T, eh. 5, sec. 1 and eh. 6, sec. 2.
3 1 While Hume focuses exclusively on rules of property and contract, it is fair to
regard his theory of justice as a theory of the foundations of law in general. I have
defended this approach to Hume's theory of justice in BCL T, eh. 3, sec. 1 . I must
add here that it is no part of my thesis that Hume had Hale specifically in mi11d when
he developed this part of his theory o f justice.

'

Some Roots of our Notion of Precedent

27

Hume's argument rests or1 two related assumptions: ( 1 ) the task

of rules of justice (and law) is 'to cut off all occasions for discord
and contention', 32 i.e, to define a framework for co-ordination of
social interactions regarding matters on which there still may be
wide dissensus on the merits ; and (2) that the utility, both public
and private, of a scheme of rules of property depends not on the
details of the scheme itself, but depends entirely on there being
general concurrence in some scheme or other.
-

That there be a separation or distinction of possessions, and that this

separation be steady and constant; this is absolutely required by the
interests of society, and hence the origin of j ustice and property. What
possessions are assigned to particular persons; this is, ge11erally speaking,
pretty indifferent; and is often determined by very frivolous views and
considerations.3 3

The guiding theme of Hume's argument for property, and for

government generally, is that it is 'interest which gives the general
instinct; but 'tis custom which gives the particular di rection'
( Treatise, p . 55 6).
But why does Hume believe that the specific content of the rules
of property is a matter of (relative) indifference? To answer this
question we need to return to the hypothetical scene of the birth of
the 'convention' of j ustice which Hurne describes in the Treatise.34
Upon reflection the parties to this 'convention' remark to them
selves and to each other that in the absence of restraints on
individual self-aggrandizement, stable and certain possession of
material goods (the only hope for individual survival against the
elements, as well as the source of all human improvement) is
impossible. This shared conviction produces a shared and mutually
expressed willingness to participate in any scheme for stabilizing
possession, on the condition that all (or most) others participate as
well. This sense of common interest is not just an abstract
acknowledgement that such agreement would be a good thing. It is,
Hume insists, a p resent, genuine, and lively willingness to do one's
part in such a scheme. In light of what is at stake, each of the parties
is poised on the edge of agreement. But since the willingness is
32

D. Hume, A Treatise of Human Nature, ed. L. A. Selby-Bigge, 2 n d ed. rev. P.

H. Nidditch (Oxford, 1978), p. 502.
33 D. Hume, Enquiry Concerning the Principles of Morals, ed. L. A. Selby-Bigge,
3rd ed. rev. P. H. Nidditch (Oxford, 1 975), p. 309 n., emphasis added.
34 For a fuller discussion of the structure of the convention see B CL T, eh. 4, sec.
1.

28

Gerald]. Postema

conditi<)11al, tl1e agreement will be achieved only if there is a single,

co111111011ly acknowledged focus fo1 their agreement.
Tl1e parties face a problem, however, since there may be several
regularities of behaviour for the group which could co-ordinate its
effo1"tS. It will do no good to instruct each party to choose the
opti mal one, because we have no reason to believe that the
regularity regarded as optimal by one party is the same as that
regarded as optimal by all (or a lion's share) of the other parties.
Experience tells us, says Hu1ne, that we can expect there to be
al1nost as many different views of which of the candidate rules is
optimal as there are viable candidates ( T1,.eatise, p. 5 02, Enquiry,
pp. 1 92-4). Indeed, ai1y principle recommended on its merits is
bound to fail, says Hume.35 Furthermore, exercise of strategic
reason (trying to predict how the other parties will act by
replicating their reasoning in the situation) will not help either, for
reason will never get the parties over the gap created by conditional
intentions, even if we add salience to their stock of common
knowledge. For reason will lead each party only to form new
conditional intentions, the antecedents of which must be fulfilled
before the consequents can be detached and issue in decision and
action.36
Despite the utter failure of 'reason' to solve the problem of co
ordination, Hutne insists that there is still hope for agreement
amongst the parties. For what reason could never accomplish, he
maintains, 'imagination' and 'fancy' can accomplish without great
effort. Reason and interest give 'the general instinct' and bring the
parties to tl1e brink of agreement, but, only 'custom .. . gives the
particular direction' ( Treatise, p. 5 5 6).
'Imagination' is engaged in the following way. With the parties
poised 011 the edge of agreement, aware of the ambiguity in their
strategic situation, the parties just need something to engage
collective attention ( Treatise, pp. 505, 5 1 2 n.), some salient feature
of one of the candidate rules which isolates it from the other
35

'If any other rule than established practice be followed, faction and dissel1tion
must multiply without end' (D. Hume, The History of England from the Invasion of

Julius Caesar to the Revolution in 1 6 88 (Indianapol is, 1 9 8 3 ) , iv. 355. A recurring

theme of the History is the confusion and social disruption caused by appeals to
principles which purport to rest for validation not o n established practice
('prepossessions') but on independe11t reaso11, natural law, or revelation. See
History, iii. 2 1 0- 1 2 ; iv. 354-5 ; v. 94-6, 544-5 ; a11d Hume, Essays: Moral, Political
and Literary (Oxford, 1 963), pp. 4 87-8, 499-500, 573-4.
36 I have a rgued this important poi11t more fully i n BCLT, eh. 4, sec. 2 .

Some Roots of our Notion of Precedent

29

candidates, which is obvious to each party, and which is known to

each to be obvious to each of them. Successful co-ordination (that
is, 'agreement' ) can be achieved in the type of situation Hume
carefully describes if there is one rule or regularity which publicly
stands out from the others, and if the parties can read the same
message in the common situation. The feature which makes a
candidate rule salient need not be anything of deep signi ficance.
The 'very slight connexions', seemingly 'arbitrary' and 'capricious
analogies' ( Enquiry, pp. 1 9 5-6, 2 1 0), will be sufficient under the
circumstances to focus attention, so long as they are 'the most
obvious and remarkable' ( Treatise, p. 508 n . ) . It is j ust such
salience, he argues, that marks occupation, prescription, succes
sion, and the other rules of property as appropriate 'determin
ations' of property.
Salience, then, is a product of 'imagination', not reason. But in
Hume's usage the term 'imagination' does not refer to a brute fact
about the psychological tendencies o f individual human minds.
Imagination succeeds where reason fails because it is social.
Imagination would not do the job if it were merely a fact abot1t
human psychology that, under the circumstances, some particular
rule would be regarded as unique among candidate rules. Salience
cannot be a 'private' fact; it must be public if it is to focus attention
and detach conditional intentions. The 'impact on the mind' of
some otherwise frivolous consideration has the desired effect only if
it is confirmed (or can reasonably be expected to be confirmed) by
similar experiences in others. Imagination works it solves
Humean co-ordination problems only because each party can
read the same message in the common situation, and each is
confident and has reason to be confident that his or her response is
not idiosyncratic.
Hume's model for the operation of imagination is argument from
analogy.37 Against intuitionists and rationalists, Hume points out
that there is no fact of the matter outside of the practice of legal
reasoning and the body of commonly recognized legal doctrine that
warrants the claim that the instant case lies closer to precedent case
A than to precedent case B . Nevertheless, Hume maintains, it
would be equally wrong to say that such j udgments of analogy are
merely subj ective, idiosyncratic, or arbitrary. Among those learned
in the law, he suggests, such j udgments are open to critical scrutiny.
37

Hume, Enquiry Concerning the Principles of Morals, pp. 1 95-6, 2 1 0, 308-9.

Gerald ]. Postema

That is, it is possible, fronrz within the practice, to di scrim inate in

ma11y (if not all) cases between valid and invalid claims of analogy
(or at least between more and less plausible assertions of analogy).
Drawing on the discussion in section I I above, we might say,
then, that the capacity of imagination at work in novel cases in
discovering analogies and disanalogies to past p recedents is, on
Hu1ne's view, more like the capacity to formulate novel sentences
which a comn1unity of speakers of the language can recognize as
appropriate, than either the intuition of some truth in a mind
independent reality, or the mere psychological disposition directly
to respond to certain external stimuli. Imagination is a social
capacity. Thus, with the notion of 'imagination' Hume captures
and develops Hale's notion of fluency with the common staple of
human affairs and conversation. 38
It must be stressed that while Hume distinguishes 'imagination'
from 'reason', this does not imply that following imagination is
irrational in Hume's view. On the contrary, the point of Hume's
argument is to show that compliance is rational, but the rationale
for compliance lies not in the merits of the rule itself, but in the
strategic social context, and the p roblem for which the rule
provides the solution. All the reason one needs for complying with
a co-operative sche1ne has already been spelled out, Hume insists,
and would be fully appreciated by the parties. 39 'Frivolous'
considerations merely focus that rational and motivational energy,
as it were, on a specific pattern o f action. Thus, the 'strategic
context' can transform otherwise rationally indifferent or even
irrational considerations into rationally compelling ones. This
explains, says Hume, how a former j udicial decision, 'though given
itself without any sufficient reason, j ustly becomes a sufficient
reason for a new decision' ( Enquiry, p . 3 0 8 ) . The key is to shift
38

See above, n. 3 1.
39 The primary reasons Hume considers are, of course, reasons of self-regarding
interest. But he also points out that once the scheme of rules is in place, the mutt1ally
referential intentions that constituted the common sense of interest', are trar1s
formed into expectations on which the parties act. The actions of each 'have a
reference to those of . . . other[s], and are _perform'd 11pon the supposition, tl1at
something is to be perform'd on the other part' ( Treatise, p. 490). To violate the
rules of the convention, is to fail to do one's part, and inevitabl) to defeat the
expectations on which others legitimately relied ( Enquiry, pp. 3 10- 1 1 ). 1\nd these
latter considerations count as legitimate reasons for action for those whose (self
regarding) interests have been transformed by this process of o bservation, reflection,
and judgment ( Treatise, p. 489).

'

Som e Roots o f o u r Notion of Precedent

de
o
ci
r
si
ac
o
ti
n
on
from j us ti fic at io n
of
n
o
i
. U.tl ficat
.
.
J
.

lo
ng
er
no
is
el
th is leY
.
cribes.
pres
it
cri on

logzca lly in te rn al

of the rule

01 1

to the ru le or the ki nd of

'na
tu
ra
l')
so
rt
is
sa
id
no
t
de
av
pe
e
nd
en
t
o n the me rit s of the
h
uld
o
w
on
Ne
s.
ve
rth
ele
de
ss,
cis
i
Hu
me
's
or
dis tin cti on between
s
ule
r
're
aso
n'
and
is
con sistent with the vie w tha t the
tio
n'
gin
a
'im a
tion
'
'ima
are
gina
of
themselves ratio nal, or perh aps
ities
iv
act

better, rea son abl e. Th e rea son ablene ss, how eve r, is intr insi c to the
common exp erie nce of the mem ber s of the soc iety i n que stio n . It is
not reason able acco rding to stand ards of a prior i or trans cend ent
reason, but accor ding to stand ards of the ordin ary 'reaso nings of
comm on life'.40
Now we are in a positi on to outlin e the main compo nents of the
conventionalist account of precedent. It is a 'two-level' theory
which draws on elements o f th e positivist account at one level and
elements of the traditionary account at the other level. ( 1) It gives a
general account of the underlying authority or binding force of
precedent in terms o f achieving regularity and effective co
ordination of social interaction. To this extent it borrows from the
positivist theory. (2) Drawing o n the traditionary conception, it
offers an account of how regularity and co-ordination are achieved.
For, on this view, they are effectively achieved not by appeal to
natural reason, nor by appeal to artificially created general rules
laid down by a recognized sovereign or his dep uties. It is best
achieved, rather, through careful work ing out of shared understand
ings of common practices. What is com mo n is not a set of general
rule s, but a m utu ally rec ogn ized and wid ely pra ctis ed pro ces s of
reasoning from the particu lars of a commo n life. Judicia l reason ing,
while the practi ce of expert s, is contin uous with the ordina ry
reason ings of our common life, and so effectivel y meets needs of
so ci a l co -o rd in a ti o n .
On this view, then, i t is a mistake to take very seriously talk of
rules being laid down. And it is m isleading to ask whether the
reasoning Hume refers to is performed by the judge in discovering
'the rule laid down by a previous j udge' or, rather, in determin ing
'the rule to be laid down in the instant case ' . It is, perhaps, useful
40D. Hume, Enquiry Conce rning Huma n Understanding, ed. L. A. Selby- Bigge,

3rd ed. rev. P. H. N id di tc h ( O xford, 1975), p. 41.

32

Gerald ]. Postema

for some .Putposes to distinguish betwee11 rela tively easy cases and
1elatively hard cases. But this distinction does not, on this view,
correspond to applying rules laid down in prior cases and laying
down new rules for novel cases . A n d in both kinds o f cases the form
of reasoning is thought to be the same : the instant case is located
within or related to the complex details of c o mmon life (or

relevant portion of it) reposited in the common law, and con

clusions are drawn from this context depending on the strength of

the analogies to it. 41

The conventionalist account can be seen a s responding to

perceived defects in the other two rival a ccounts. The positivist
account of precedent, for example, fails to explain why judges try
so hard to find guidance in, or a t least remain faithful to, the
existing law when they face a h a rd or novel case. Something like the

tt

traditionary account, the conventionalist might argue,

better
describes recognized adjudicative p ractice. On the other hand, the
traditionary account seems unable to o ffer a full and convincing
explanation of why judges, or citizens, should regard a s binding the
results of traditionary reasonings. For this p urpose, the potential of
such results effectively to order social i nteraction is, argues the
conventionalist, sufficient reason to regard them a s binding.
But this suggests that the summary o f the conventionalist account
given above makes the account seem more instrumentalist than it
needs to be. Bentham, to be s ure, was inclined to raise the question
of how best to structure j udicial decision making s o a s to maximize
'satisfaction of expectations'. That is, Benth a m was inclined to treat
the general question of the rational binding force o f precedent as a
question of institutional design. But the conventionalist need not
(and . Hume did not) regard it in this way. On the conventionalist
view, the questions of j ustifica tion which norn1ally arise within law
are settled by traditionary means. It i s only when the rational
acceptability and authori ty of the results o f s uch techniques are
themselves challenged that appeal is made to the capacity of legal
reasoning thus pursued to co-ordinate s o cial interaction. The
general argument provides a rationale for the p ra ctice ex post, not a
defence of setting up such a practice

42
ex ante.

4 1 This, of course, leaves a great deal unsaid about the precise nature of this
process of reaso 11ing. None of the writers considered here say much more about th is
process.
42 For a more detailed discussion of the distinction between j ustification ex ante

Some Roots of our Notion of Precedent

33

The pri mary phil oso phic al inte rest of this conv e11ti ona list theo ry
the
in
fact
that
lies
nt
while
it
recogn izes the force of the
ecede
pr
of
motiva
ted
which
the positiv ist concep tion o f p receden t
nt
ume
arg
(an d on which, in the ninetee nth century largely through Bentham ,
the doctrine of 'binding precedent' or stare decisis was based),
nevertheless it insisted on retaining the main elements of the
traditionary conception of precedent. The question, of course, is
whether this hybrid view is correct, or even coherent. An answer to
this question might carry us a long way towards determining
whether the conception of p recedent in use in contemporary Anglo
Ame rican j urisp rude nce is itself cohe rent.
and evaluation ex post, see J. Elster, Sour Grapes (Cambridge, 1 98 3 ) , pp. 9 1 -5. I
argue for the above interpretation of Hume's argument in B CLT, pp. 1 1 7-20.

t
,