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Reasoning with previous decisions: beyond the doctrine of precedent

Komárek, Jan (2012) Reasoning with previous decisions: beyond the doctrine of precedent. LSE law, society and economy working papers, 08-2012. The London School of Economics and Political Science, London, UK.

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Abstract

'[A] relative absence of skills in case analysis’ is said to be 'the Achilles heel of civil-law methods'. This article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. These techniques can appear different from the common law ‘case law method’, but are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists lies in the dominance of the common law paradigm of precedent and the accompanying ‘case law method’. If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond precedent to a wider notion, which would embrace practices and theories existing in legal systems outside the Common law tradition. This article presents the concept of ‘reasoning with previous decisions’ as such an alternative and develops its basic models.

Item Type: Monograph (Working Paper)
Official URL: http://www.lse.ac.uk/collections/law/wps/wps1.htm#...
Additional Information: © 2012 The Author
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > European Institute
Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Identification Number: 08-2012
Date Deposited: 01 Feb 2013 15:39
URL: http://eprints.lse.ac.uk/48237/

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