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Towards a Theory of Stare Decisis Towards a Theory of Stare Decisis
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Towards a Theory of the Path Dependence of Judicial Institutions Towards a Theory of the Path Dependence of Judicial Institutions
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Part front matter for 2 Judicial Law‐Making and Precedent
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Published:August 2002
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Extract
The relationship between judicial activity and law‐making is a crucial question for any social science of courts because law‐making, or the ongoing adaptation of rules, is the most salient activity of all organs of government. In Western legal systems, it can hardly be denied that courts make rules all of the time, since these activities are minutely recorded in case law, and thus it is impossible to deny that judges are political actors. Nonetheless, the assertion that judges engage in a mode of law‐making that is exclusive to adjudication, which sets them apart from other law‐makers or the ‘political’ branches and strictly limits their law‐making discretion, typically follows. This is the method of law‐making associated with the rule of precedent and the common law doctrine stare decisis. In this chapter, we examine some of the problems posed by this formulation. As important, both pieces address, in different but complementary ways, a great paradox: how can it be that judicial decision‐making constantly succeeds in changing law while being governed by pre‐existing law?
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