Are Rules Governing the Use of Precedent Necessary?

Abstract

This paper addresses the issue of the necessary or contingent nature of the rules governing the use of precedent. The author argues that the rules governing the use of precedent in lato sensu (the rules that define the legal operation of judicial precedent) is a necessary rule of legal systems. However, legal systems have three different (exclusive and exhaustive) kinds of rules governing the use of precedent: a) binding rules governing the use of precedent, b) rules admitting the use of precedent and c) rules rejecting the use of precedent. The main conclusion is that whether for conceptual reasons of conferring power or for the centrality of the rule of law in current legal systems, when a legal system does not define the legal operation of judicial precedents, it can be said say there are (implicit) rules rejecting the use of precedent.