Partnering with the Dead to Govern the Unborn: The Value of Precedent in Judicial Reasoning

Research output: Chapter in Book/Report/Conference proceedingChapter


This chapter canvasses a lengthy menu of arguments for why judges ought to adhere to precedents with which they disagree. Because the author does not share the conservative instincts of those who find precedent of obvious value, the chapter reaches to Edmund Burke’s impassioned defence of legal traditions as an honest means of exploring just what can be said for binding ourselves to rules laid down by the dead, and for binding those who will live long after us by legal innovations designed to serve the needs of the living, not the needs of the still unborn. As the chapter argues, each of the justificatory arguments that we might harvest from Burke’s writings comes at some philosophical cost. The burden of this chapter is to cash out the value of the four categories of defences—conceptual, psychological, moral, and aesthetic—that Burke’s conservatism provides for according precedent a weighty role in judicial decision-making.
Original languageEnglish (US)
Title of host publicationPhilosophical Foundations of Precedent
EditorsTimothy Endicott, Hafsteinn Kristjansson, Sebastian Lewis
PublisherOxford University Press
Number of pages14
ISBN (Electronic)9780191948046
ISBN (Print)9780192857248
StatePublished - 2023

Publication series

NamePhilosophical Foundations of Law


  • Edmund Burke
  • aesthetics
  • virtue
  • natural law
  • social contract
  • cognitive biases
  • epistemic heuristics
  • adjudication
  • interpretation
  • originalism
  • rule of law
  • non-cognitivism
  • conservatism


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