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Title: Processes in precedent : a multiple-constraint model of legal reasoning
Author: Hunter, D.
Awarding Body: University of Cambridge
Current Institution: University of Cambridge
Date of Award: 1999
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Abstract:
This dissertation examines what it means to decide a legal case according to precedent. I present a descriptive model of precedent, which relies on cognitive science studies of human reasoning to explain some characteristics of precedential reasoning. My basic thesis is that the traditional view of precedential reasoning is an inadequate descriptive model of how adjudication actually operates. The traditional view suggests that precedential reasoning involves the deductive application of a rule to the undecided case, where the rule is derived either from other precedents or from a fundamental legal or moral principle. On this view, precedential reasoning is just a modified form of deductive reasoning. I shall suggest that this view does not account for the freedom judges have to ignore precedent that might seem to bind them, and equally the constraints judges feel upon them to decide according to precedent in situations where they are not bound. To counter this, I present a model which relies on three fundamental concepts. First, I suggest that precedential reasoning involves two inter-linked processes of discovery and justification. Discovery is the process by which a judge concludes that a precedent can be applied to the current case, on account of a number of similarities between the precedent and the case. Justification is the process of explaining why a particular 'discovered' precedent should apply to the current case. The second major concept is the idea of constraints on decision-making. Rather than suggesting that legal cases or rules are the only constraints on precedential reasoning, I shall show that many other psychologically-explicable constraints operate when judges decide cases. These constraints include the effect of metaphors, the nature of analogical reasoning, and the effect of inductive inference. The final fundamental concept is the application of Gestalt psychology to understand how these constraints can unconsciously affect precedential reasoning. Using this approach, I show how it can be that judges can be constrained, but be unaware of those constraints.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID: uk.bl.ethos.604816  DOI: Not available
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