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PROTECTED REASONS AND PRECEDENTIAL CONSTRAINT

Published online by Cambridge University Press:  15 July 2020

Robert Mullins Open the ORCID record for Robert Mullins [Opens in a new window]
Robert Mullins*
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Lecturer in Law, University of Queensland
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Abstract

According to the prioritized reason model of precedent, precedential constraint is explained in terms of the need for decision-makers to reconcile their decisions with a settled priority order extracted from past cases. The prioritized reason model of precedent departs from the view that common law rules comprise protected reasons for action. In this article I show that a model utilizing protected reasons and the prioritized reason model of precedential constraint are, in an important sense, equivalent. I then offer some reflections on the philosophical significance of this result. I argue that the protected reason model is consistent with the phenomenology of precedential constraint. I suggest an account of precedential reasoning that reconciles the prioritized reason and protected reason models.

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Type
Research Article
Information
Legal Theory , Volume 26 , Issue 1 , March 2020 , pp. 40 - 61
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

I am grateful to my anonymous reviewers for their thoughtful comments and advice. This article was written while I was a Visiting Fellow at the Rutgers Institute for Law and Philosophy. I would like to thank the Institute for providing a welcoming and supportive research environment.

References

1. Bentham, Jeremy, Constitutional Code, vol. 1 (Rosen, Fred & Burns, J.H. eds., 1983), at 434Google Scholar. Quoted in Atiyah, P.S., Form and Substance in Contract Law, in Essays on Contract 93–120, 97 (1981)Google Scholar.

2. Lamond, Grant, Do Precedents Create Rules?, 11 Legal Theory 1, 18–19 (2005)CrossRefGoogle Scholar; Horty, John, Rules and Reasons in the Theory of Precedent, 17 Legal Theory 1 (2011)CrossRefGoogle Scholar [hereinafter Rules and Reasons]; Horty, John & Bench-Capon, Trevor J. M., A Factor-Based Definition of Precedential Constraint, 20 Artificial Intelligence & L. 181 (2012)Google Scholar; Horty, John, Constraint and Freedom in the Common Law, 15 Philosophers’ Imprint (2015)Google Scholar [hereinafter Constraint and Freedom]. Along with Horty and Bench-Capon, Adam Rigoni suggests refinements to the model in An Improved Factor Based Approach to Precedential Constraint, 23 Artificial Intelligence & L. 133 (2015). In Rules and Reasons, Horty uses “reason model” to describe his account. Here I call it the “prioritized reason model” to distinguish it from the protected reason model.

3. A useful overview of these models, requiring little technical familiarity, is offered in Kevin Ashley, Modeling Case-Based Legal Reasoning, in Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age (2017).

4. For Horty's elaboration of this view, see especially Constraint and Freedom, supra note 2, at 13–18.

5. Alexander and Sherwin are advocates of a strict rule-based approach; see especially Larry Alexander & Emily Sherwin, Demystifying Legal Reasoning (2008). Lloyd Weinrib offers an account of precedent as (relatively unconstrained) analogical reasoning in Lloyd Weinrib, Legal Reason: The Use of Analogy in Legal Argument (2005). Katharina Stevens offers a useful overview of these two different approaches, and their relative strengths, in Reasoning by Precedent—Between Rules and Analogies, 24 Legal Theory 216 (2018).

6. Cf. Joseph Raz, Facing Up: A Reply, 62 S. Cal. L. Rev. 1153, 1204, 1208 (1989) [hereinafter Facing Up]; Joseph Raz, The Authority of Law (1979). Lamond initially suggested a reason-based model of precedent in terms of protected reasons. Lamond, supra note 2, at 18–19. Indeed, Lamond's suggestion is the basis for my own proposal. However, this interpretation was not taken up in subsequent developments of the prioritized reason model.

7. Raz, Joseph, Practical Reason and Norms (2d ed. 1999), at 35–84, 178–199CrossRefGoogle Scholar.

8. Joseph Raz, Authority, Law, and Morality, in Ethics in the Public Domain: Essays in the Morality of Law and Politics (1995), at 210–237. Though for a more ecumenical argument, not relying on protected reasons for action, see Shapiro, Scott, On Hart's Way Out, in Hart's Postscript: Essays on the Postscript to “The Concept of Law” (Coleman, Jules L. ed., 2001)Google Scholar.

9. HLA Hart, Essays on Bentham (1982), at 254–255.

10. For critical discussion of Raz's account of protected reasons, see Regan, Donald, Authority and Value: Reflections on Raz's “Morality of Freedom”, 62 S. Cal. L. Rev. 995 (1988)Google Scholar; Perry, Stephen, Second Order Reasons, Uncertainty and Legal Theory, 62 S. Cal. L. Rev. 913 (1988)Google Scholar; Alexander, Larry, Law and Exclusionary Reasons, 18 Phil. Topics 5 (1990)CrossRefGoogle Scholar; Owens, David, Rationalism About Obligation, 16 Eur. J. Phil. 403 (2008)CrossRefGoogle Scholar; Essert, Christopher, A Dilemma for Protected Reasons, 31 Law & Phil. 49 (2012)CrossRefGoogle Scholar; Essert, Christopher, Legal Obligation and Reasons, 19 Legal Theory 63 (2013)CrossRefGoogle Scholar.

11. Readers unfamiliar with the prioritized reason model should consult Horty, Rules and Reasons, supra note 2; Horty, Constraint and Freedom, supra note 2; Horty & Bench-Capon, supra note 2; Rigoni, supra note 2.

12. Horty, Rules and Reasons, supra note 2.

13. This is, admittedly, a constraint imposed for the sake of simplicity. Rigoni notes that sometimes the courts present the ratio of a case in terms of hypothetical reasons that are not satisfied in the factual context of the case. This seems particularly plausible in the context of reasoning by appellate courts. Rigoni, supra note 2, at 145–146.

14. Horty, Constraint and Freedom, supra note 2, at 17.

15. For comparison of the prioritized reason model and these other approaches, see Horty, Constraint and Freedom, supra note 2, at 13–23. For presentation of a strict rule-based model of precedent, see Alexander & Sherwin,supra note 5. For a less strict version of the rule-based approach, see Frederick Schauer, Playing by the Rules (1991), at 174–191.

16. Horty, Constraint and Freedom, supra note 2, at 24.

17. Cf. Perry, supra note 10, who offers an account of legal obligation in terms of what he calls “reweighting” reasons.

18. Raz,supra note 7, at 35–84, 178–199. A similar account of reasoning with rules is developed in Geoffrey Warnock, The Object of Morality (1971).

19. Id. at 36–37.

20. Id. at 38.

21. See Raz's discussion of the reasons not excluded by Colin's promise to his wife; id. at 40.

22. Id. at 70; see also HLA Hart, Commands and Authoritative Legal Reasons, in Essays on Bentham 233, 254–255 (1982).

23. Raz asserts that at least with respect to the English law of precedent it is appropriate to see precedent as creating obligations in the form of protected reasons; Facing Up, supra note 6, at 1204, 1208. Lamond, supra note 2, argues that the obligation imposed by precedent on subsequent courts is disjunctive: courts must either follow or distinguish a precedent.

24. In fact it is worth noting that common law decisions act as a source of obligations in two ways. First, they create obligations that purport to guide the conduct of law's subjects; second, they create obligations on behalf of decision-makers who are bound not to depart from that precedent; cf. Perry, supra note 10, at 962–993. Our discussion here focuses on the latter form of obligation.

25. Lamond, supra note 2, at 18–19.

26. See Horty, Rules and Reasons, supra note 2, at 3; Horty & Bench-Capon, supra note 2, at 183.

27. Id. at 19. Unlike Lamond, proponents of the prioritized reason model take their model to be compatible with an account of precedent in terms of rules; cf. Horty, Rules and Reasons, supra note 2; Horty & Bench-Capon, supra note 2; Rigoni, supra note 2. In Constraint and Freedom, supra note 2, Horty shows that the prioritized reason model is equivalent, in terms of constraint, to a version of the standard rule-based view, which allows courts to narrow rules in past cases through appeal to distinguishing factors.

28. See especially John Horty, Reasons as Defaults (2012), at ch. 5.

29. Lamond, supra note 2, at 20.

30. Horty, Rules and Reasons, supra note 2, at 21 n.22.

31. This view is made explicit in John Horty, Reasoning with Precedents as Constrained Natural Reasoning, in Weighing Reasons (Lord, Errol & Maguire, Barry eds., 2016)CrossRefGoogle Scholar. Perry, supra note 10, at 962–993, offered an earlier account of common law reasoning in terms of intensifying reasons, which he describes as “reweighting reasons.”

32. For accounts of intensifying reasons see Perry, supra note 10; Jonathan Dancy, Ethics Without Principles (2004), at 41–42; Schroeder, Mark, Holism, Weight, and Undercutting, 45 Noûs 328 (2011)CrossRefGoogle Scholar; Horty,supra note 28, ch. 5.

33. Note that the decision-maker does not have a reason to exclude these reasons from consideration entirely; they only have reason not to make a judgment on the basis of these reasons; see Raz,supra note 7, at 180–181.

34. Id. at 41.

35. On decisions and protected reasons see id. at 66–73.

36. Horty, supra note 31, at 211.

37. Perry, supra note 10, at 968–970.

38. See the discussion of the House of Lords in Perry, supra note 10, at 975–976; Raz, Facing Up, supra note 6, at 1208–1209.

39. According to Raz, common law courts confronted by unregulated cases (i.e., cases where the previously decided rules do not clearly apply) “act and should act just as legislators do, namely, they should adopt those rules which they judge best.” The Authority of Law (2d ed. 2009), at 197. To this we should add the proviso that the rule adopted by the court should be based on the matter before the court. Common law courts do not have the authority to act as legislators of universal jurisdiction. The rule they adopt must resolve the case before them, and it is prima facie unacceptable for the rule to be broader than is necessary to resolve the dispute.

40. The idea that a case base reveals a collective priority or preference order is defended in, e.g., Bench-Capon, Trevor & Sartor, Giovanni, A Model of Legal Reasoning with Cases Incorporating Theories and Values, 150 Artificial Intelligence 97 (2003)CrossRefGoogle Scholar.

41. Horty, Rules and Reasons, supra note 2, at 15–16.

42. Id. at 15–16.

43. One reason for doubting the transitivity of the exclusion relation is the failure of what Horty calls “downward closure of exclusion.” Horty, supra note 28, at 130–135. That a reason is lower priority than another excluded reason does not entail that the reason of lower priority is also excluded.

44. Horty, Rules and Reasons, supra note 2, at 17.

45. For discussion of the role of social values in case-based reasoning see Bench-Capon, Trevor & Sartor, Giovanni, A Model of Legal Reasoning with Cases Incorporating Theories and Values, 150 Artificial Intelligence 97 (2003)CrossRefGoogle Scholar.

46. See discussion in Joseph Raz, Ethics in the Public Domain (1995), at 301–318.

47. Lamond offers the example of English courts’ reinterpretation of the rationale underlying the doctrines of what was once known as “quasi-contract” in terms of unjust enrichment; supra note 2, at 12–13.

48. On the incorporation of rules in the prioritized reason model of precedent see especially Horty, Rules and Reasons, supra note 2; Rigoni, supra note 2, at 138–140.

49. Alexander & Sherwin,supra note 5.

50. Lamond, supra note 2, at 19–20.

51. Alexander & Sherwin,supra note 5, at 84–86.

52. See Alexander, Larry, Constrained by Precedent, 63 S. Cal. L. Rev. 1, 19 (1989)Google Scholar.

53. Id. at 23.

54. Lamond, supra note 2, at 15–24.

55. Lamond, supra note 2, at 19.

56. Raz,supra note 39, at 189.

57. For recent discussions of this problem see Horty, John, Reasoning with Dimensions and Magnitudes, 27 Artificial Intelligence & L. 309 (2019)Google Scholar; Rigoni, Adam, Representing Dimensions Within the Reason Model of Precedent, 26 Artificial Intelligence & L. 1 (2018)Google Scholar.

58. For useful discussion on this point in the context of the prioritized reason model see Rigoni, supra note 2, at 146–150.

59. Horty, Rules and Reasons, supra note 2, at 14 n.15; see also Horty & Bench-Capon, supra note 2, at 196 n.25.