The Theory And Practice Of Precedent

Max Weber and his followers have argued that the emergence of rational legal order is a special feature of commercial and then capitalist societies, so we can hold the perspective that the law is a theatre of practical reason and deliberation. The study of precedent, can contribute to grasping the character of law as a rational enterprise which is guided by practical reason. Although there are differences between the two legal systems, the secular movement is towards convergence. Applying lessons of the past to solve problems of present and future is a basic part of human practical reason. So, precedent has a very important place in every legal system, affecting the development of law in every legal system. But, instituations、histories and legal traditions have deep influences on the developing path of every legal system, different countries differ markedly over the question how, and how far, they require or expect judges to observe precedents as governing models for decision. So, this article hopes to track a presumptively common rationality, through the study of precedents in a variety of institutional settings.Except the introduction and conclusion, this thesis can be divided into four chapters.The introduction describes the meanings and the values for the study of precedent、the aim and the difficulty in the process of writing this article.The first、second and third chapter describe the precedent in UK、US、 Germay,through the same questions:the institutional setting、the bindingness of precedent,the rationale of precedent, the way of using precedent.The fourth chapter is a comparative describation. Mainly discussed four aspects:1、In different institutional settings the legal theory for the nature of precedent. In UK and US,the theory tends to regard the precedent as a source of law, while the civil law system tends to regard the precedent as a interpretation of law. Although there are differences between the two legal systems, there is possible convergence among the theory development of this three countries.2、The bindingness of precedent. In 《Interpreting precedents:a comparative study》,there is a conceptual framework. And in use of this conceptual framework, search for an account of the bindingness of precedent in different levels.In the basis of this, the article describles three different reasoning models in the precedent.3、The rationale of precedent. In every legal system, there are some values in supporting the practice of following precedent. They are always some formal values, such as uniformity、equality and the rule of Law; but there are also limits to Stare Decisis.4、The way of using precedent. On one hand, It describes the differences of the way of using precedent among three countries. On the other hand, It describes what is binding in the precedent.The conclusion deals with two tasks, one is reclaim the convergence of two legal systems, the other one is refer to ’the guiding case institutions’ in our country.