DOI: 10.1111/j.1747-9991.2007

Precedent is a central feature of legal practice, requiring courts to follow decisions reached in earlier cases, thereby transforming the decisions in individual cases into a source of law. This article examines two major questions associated with precedent: (a) how to characterise the way that precedent operates as a source of law; and (b) how to justify the requirement that courts follow earlier decisions regardless of the merits of those decisions. Precedents are often thought to create general legal rules, but it is controversial whether this is the best way to understand their role in legal reasoning. Equally, it is unclear that the most common justifications for precedent unequivocally vindicate the practice.

DOI: 10.1093/ojls/gqm018

This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well-known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged.

ISBN: 0143-6503

DOI: 10.1017/S1352325205050019

This article argues that legal precedents do not create rules, but rather create a special type of reason in favour of a decision in later cases. Precedents are often argued to be analogous to statutes in their law-creating function, but the common law practice of distinguishing is difficult to reconcile with orthodox accounts of the function of rules. Instead, a precedent amounts to a decision on the balance of reasons in the case before the precedent court, and later courts are required to decide cases on the basis that the earlier decision was correctly decided.

ISBN: 1469-8048

DOI: 10.1017/S1352325201071026

The main focus of the article is upon two major lines of argument that attempt to establish a link between law and coercion: one based upon the law's efficacy; the other upon the law's normativity. It argues that the claim that law is necessarily coercive because it must be efficacious is mistaken--not necessarily on sociological or psychological grounds, but because it identifies law with the preconditions for its existence. On the other hand, the argument that law's normativity is inherently linked to coercion contains an important truth--not because coercion is necessary to account for normativity, but because the scope of law's claim to authority encompasses the right to authorize the use of coercion.

ISBN: 1469-8048

DOI: 10.1093/ojls/20.1.39

One of the central features associated with law is its coerciveness. A major source of our interest in law's coerciveness is that the use of coercion is thought to require moral justification - hence the liberal interest in the harm principle. This article seeks to contribute to the debate about the justifiable grounds for legal coercion by clarifying the ways in which law is coercive and demonstrating that coerciveness is a highly complex phenomenon. It argues that the legal authorization of physical force and sanctions, rather than the existence of enforcement institutions, is the appropriate focus for these enquiries. It considers the appropriate methodology for understanding the nature of coercion and goes on to argue that there are a group of nested conceptions of coercion which perform different roles in different contexts. The differences between these conceptions help to account for some of the disagreements over law's coerciveness. There is also an important contrast between laws which aim to coerce and those which merely have a coercive effect. All of these internal distinctions within coercion matter because they have considerable significance for the justification of coercive legal measures. Finally, it is argued that sanctions are neither necessary for the law to be coercive, nor always sufficient.

ISBN: 0143-6503

This paper provides an overview of issues raised by the nature of coercion. It outlines four major distinctions that are both important to understanding the nature of coercion and important to disputes about its nature: (1) coercion in the sense of actions that aim to force another to do something, as opposed to actions that simply have that effect (i.e. are "coercive"); (2) coercion by the use of physical force against another as opposed to coercoin by the creation of a "forced choice" for that person; (3) coercion as a factor affecting the liability of the person who succumbs to the force ("duress") as opposed to coercion as a means of making another do as one wills; and (4) distinguishing between proposals that are threats rather than offers. These distinctions all bear on the question of why the use of coercion is ordinarily regarded as requiring some moral warrant.

ISBN: 9781405186414

This article provides an overview of the key philosophical issues raised by the nature of coercion. It distinguishes two methods of coercion (physical force and ‘rational’ compulsion–paradigmatically by threats); and distinguishes coercion as a means of making someone act from coercion as a means affecting the normative position of the coerced party (‘duress’). It surveys analyses of what makes a proposal a threat, whether offers can be coercive, and why rational compulsion is per se morally problematic (if it is). It suggests that while all forms of rational compulsion have a common core, the conditions for duress depend on additional situation specific features (e.g. duress as a criminal law defence versus duress as a vitiating factor in agreements or marriage). It goes on to consider the sense(s) in which law can be regarded as coercive, and whether coercion is a necessary feature of law.

ISBN: 9781405170062

Arguments from precedent and analogy are two central forms of reasoning found in many legal systems, especially Common Law systems. Precedent involves an earlier decision being followed in a later case because both cases are the same. Analogy involves an earlier decision being followed in a later case because the later case is similar to the earlier one. The main philosophical problems raised by precedent and analogy are these: (1) when are two cases the ‘same’ for the purposes of precedent? (2) when are two cases ‘similar’ for the purposes of analogy? and (3) in both situations, why should the decision in the earlier case affect the decision in the later case?

ISBN: 1095-5054