Chapter

Towards a Theory of <i>Stare Decisis</i>

Martin Shapiro

in On Law, Politics, and Judicialization

Published in print August 2002 | ISBN: 9780199256488
Published online November 2003 | e-ISBN: 9780191600234 | DOI: http://dx.doi.org/10.1093/0199256489.003.0003
Towards a Theory of Stare Decisis

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This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis, which is here proposed as a new theory. Shapiro defines stare decisis as loosely meaning the practice of courts in deciding new cases in accordance with precedents, and in the ensuing discussion of the theory, he draws upon insights from both communications theory and previous work of his own on the decision-making process in tort law. He first examines the three branches of communications theory with respect to legal discourse: syntactics (the arrangement, transmission, and receipt of signals or signs, whose key concepts are information, redundancy, and feedback), semantics (the meaning of signals to people), and pragmatics (the impact of signal transmission and human behaviour), and then applies these concepts to the evolution of policy formulation in tort law in the United States and Britain. The survival of stare decisis as the dominant mode of legal discourse, particularly in the area of common law, is explained as its strength in its dual and mutually supporting contents of syntactic and semantic redundancy.

Keywords: Britain; common law; communications theory; decision-making; feedback; information; law-making; policy formulation; pragmatics; precedent; redundancy; semantics; signalling; signals; stare decisis; syntactics; tort law; United States

Chapter.  4787 words. 

Subjects: Comparative Politics

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