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Two ways to understand the common law

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journal contribution
posted on 26.03.2018, 08:59 by Peter Jaffey
I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. I explain why under the holistic approach the common law contains principles as well as rules, and I consider the two approaches in the light of the requirement of the rule of law, and I show how the holistic approach explains a version of the policy/principle distinction.

History

Citation

Jurisprudence, 2017, 8 (3), pp. 435-460

Author affiliation

/Organisation/COLLEGE OF SOCIAL SCIENCES, ARTS AND HUMANITIES/Leicester Law School

Version

AM (Accepted Manuscript)

Published in

Jurisprudence

Publisher

Taylor & Francis

issn

2040-3313

eissn

2040-3321

Acceptance date

27/07/2017

Copyright date

2017

Available date

18/03/2019

Publisher version

https://www.tandfonline.com/doi/full/10.1080/20403313.2017.1361696

Notes

The file associated with this record is under embargo until 18 months after publication, in accordance with the publisher's self-archiving policy. The full text may be available through the publisher links provided above.

Language

en

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