Abstract

Although the Common Law model of precedent and the Civil Law model of precedent differ in certain respects, they are also similar in important respects. In this chapter, I discuss the question of whether the common core of these models, which I call the shared view, can be squared with a theory called reasons holism. I 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 not in others, and that this threatens the shared view. I also argue, however, (2) that we may coherently conceive of these reasons as conventional reasons, and that therefore the shared view will not be threatened. Moreover, I argue (3) that if ordinary legal reasons are genuine, the ratio decidendi of a precedent cannot be a genuine general norm, that following precedent can therefore not be understood as action in keeping with such a norm, and (4) that no alternative analysis of the ratio in terms of legal rules of thumb, or supervenience likeness, can solve these problems. I also argue, however, (5) that the shared view can nevertheless be defended, because the theory of reasons holism is actually rather problematic, and because even if this were not so, legal positivists could still defend the shared view, on the grounds that legal reasons are merely conventional reasons.