Two ways to understand the common law. Article (2).pdf (374.33 kB)
Two ways to understand the common law
journal contribution
posted on 2018-03-26, 08:59 authored by Peter JaffeyI distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. I explain why under the holistic approach the common law contains principles as well as rules, and I consider the two approaches in the light of the requirement of the rule of law, and I show how the holistic approach explains a version of the policy/principle distinction.
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Citation
Jurisprudence, 2017, 8 (3), pp. 435-460Author affiliation
/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law SchoolVersion
- AM (Accepted Manuscript)
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JurisprudencePublisher
Taylor & Francisissn
2040-3313eissn
2040-3321Acceptance date
2017-07-27Copyright date
2017Available date
2019-03-18Publisher DOI
Publisher version
https://www.tandfonline.com/doi/full/10.1080/20403313.2017.1361696Notes
The file associated with this record is under embargo until 18 months after publication, in accordance with the publisher's self-archiving policy. The full text may be available through the publisher links provided above.Language
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