Stephen R. Perry (University of Pennsylvania Carey Law School) has posted Precedent as Generalized Second-Order Reasons (In Philosophical Foundations of Precedent (T. Endicott, H. Kristjansson, S. Lewis eds., OUP forthcoming)) on SSRN. Here is the abstract:
This essay argues that the common law doctrine of precedent, understood as including the related practices of overruling and distinguishing prior cases, must be explained and justified in non-positivist terms. Joseph Raz, who has advanced the strongest extant argument for legal positivism, holds that the existence and content of all valid law is fully determined by social facts, such as facts about the actions of courts and legislatures, without resort to moral argument. He defends this ‘sources thesis’ by arguing that law can only guide conduct if it is publicly ascertainable by persons without their being required to engage in moral argument. This essay, while acknowledging that the sources thesis may apply to the practical reasoning of private citizens, argues that it does not apply to the practical reasoning of common law courts. Raz’s defense of the sources thesis rests on his notion of a ‘second-order’ reason for action, which is a reason to act on or refrain from acting on a ‘first-order’ reason. Legal rules, including those derived from precedent cases, are, for Raz, ‘exclusionary’ second-order reasons, meaning reasons to refrain from acting on the ordinary balance of first-order reasons (sometimes called the balance of principles). This essay argues that a satisfactory account of precedent cannot be based on Raz’s notion of a second-order reason. It requires, rather, a generalization of that notion, which holds a second-order reason to be a reason to assign a first-order reason a greater or lesser weight than it would otherwise receive in an assessment of the ordinary balance of reasons. This yields a conception of precedent which does not comply with the sources thesis, and which is therefore non-positivist in character, because no relevant first-order reasons, including moral reasons, are excluded from judicial consideration as a matter of course.
Highly recommended.