The common practice of teaching law students the rules of precedent is a misguided one, if we take seriously what María Beatriz Arriagada has to say in her article in a recent issue of Ratio Juris. In “The Two Faces of Precedent: A Hohfeldian Look,” Arriagada offers a radical alternative to the conventional portrayal of precedent as a system of regulative rules.
Arriagada’s article stimulates and provokes across a range of issues. Commencing with a preliminary reflection on the nature of analytical legal philosophy/theory (Pp. 25-26), she offers a number of insights to challenge assumptions made on the way the practice of binding precedent works, in developing her own structural analysis of precedent. At the same time, Arriagada draws on a sophisticated understanding of the Hohfeldian analytical scheme in her efforts to bring precision to a detailed analysis of the actual workings of precedent.
Her preliminary reflection focuses on a role for legal theory in refining specialized legal discourse through removing defects and revealing concepts assumed within it. Applied to her current topic, this amounts to confronting “certain distorted representations of binding precedents” as well as “making explicit … the idea of bindingness” (P. 26.)
The use of the Hohfeldian scheme to aid this task is a reflection of a resurgence of interest in Hohfeld’s work, now more than one hundred years after his death (see Wesley Hohfeld a Century Later: Edited Work, Select Personal Papers, and Original Commentaries). This has included taking Hohfeldian analysis to new areas of interest, and, in particular, adopting the fuller resources provided by Hohfeld once the final four of his conceptions, centring around legal power, are included. Timothy Liau has recently revealed how a proper acknowledgment of Hohfeldian powers can illuminate our understanding of the doctrine of privity, in his book Standing in Private Law. In her article, Arriagada provides a rigorous analysis of binding precedent through her account of the legal powers that are involved in the practice.
Despite being critical of the “rule model” of precedent, Arriagada’s purpose is ultimately constructive–offering “a contribution to [its] reconstruction” (P. 29.) Fundamental to this enterprise is the recognition that since invalidity of a judge’s decision is a standard consequence of a failure to follow a binding precedent, it follows that the practice of precedent cannot be composed entirely of regulatory rules, since a failure to follow these would provoke a sanction (P. 28.)
In discussing existing approaches to precedent, Arriagada notes an analysis in terms of two powers: (i) the power of tribunal X to make a binding precedent, and (ii) the power of tribunal Y to apply a precedent (Pp. 32-33.) She criticizes the concentration on power (ii) here, for regarding this alone as sufficient to explain binding precedent. Instead, she insists (Pp. 34, 36) on recognizing the correlative to the power of tribunal X in (i), namely, a liability in tribunal Y.
Subsequently, the liability of tribunal Y is investigated and amplified. The “two faces” of precedent amount to the power of tribunal X and the liability of tribunal Y in (i), but the full understanding of precedent only emerges once the implications of tribunal Y being under a liability–“that the legal situation of tribunal Y will be modified each time tribunal X exercises its power to dictate precedents” (P. 37)–are understood.
Two possibilities for the way in which the modification of the legal situation of tribunal Y may occur are considered by Arriagada in some detail (Pp. 38-42): Y being under an obligation to follow the precedent of X; Y being under a power to rule on the positions of the individual parties in the case before it by applying the precedent of X (and concomitantly under a disability to rule on the case contrary to the precedent of X).
Although she stresses that the two possibilities are not mutually exclusive (P. 38), it is clear that, for Arriagada, in dealing with the practical outworkings of a system of precedent (P. 39), a modification through obligation, resulting in a sanction for breach, is less likely. In contrast, the modification through power has as a consequence of neglecting to exercise the power (and straying into disability) the invalidity of Y’s ruling on the case before it that ignores the binding precedent of X.
In this way, Arriagada is able to offer “a structural reconstruction” of the “rule model” of binding precedent. One that departs from an account in terms of regulative norms and provides proper recognition to the constitutive norms (or power-conferring rules) involved (P. 42.) This is a major achievement, which should stimulate further work on the nature of precedent. She admits that the present work deals exclusively with binding precedents and does not address non-binding precedents, nor the practices of distinguishing and overruling precedents (P. 30.) Neither is she concerned with the positions of other bodies who may have a role in controlling the exercise of precedent, employing “oversight powers” (Pp. 35, 38, 40, 42.) Nevertheless, an important implication of the work undertaken here is that these related subjects may well benefit from a theoretical approach that is open to the fuller resources offered by Hohfeld’s analytical scheme–specifically, his analysis of legal powers.
