This paper argues that not only does history matter to legal epistemology, but also that understanding legal epistemology can yield a certain understanding of the past. The paper focuses on the common law practice of precedent and argues that there is no set of rules, principles, reasons or material facts that constitute the fixed or foundational content of past decisions (a ‘timeless what’ that determines its own relevance), but rather that what is taken by a judge resolving a particular dispute to be the content of past decisions depends on the active and creative construal of relevance engaged in by that judge. Precedents are better thought of as ‘thick resources with dynamic content’. Such content is constrained by a variety of stabilising practices, but never so constrained as to determine how it can be construed to be relevant. This image of law’s past may offer a general view of the past as something with which we can actively and creatively relate in the course of coping with the present.
These include L. Alexander“Constrained by Precedent”Southern California Law Review63 (1989–1990) 1–64; F. Schauer Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford: Oxford University Press 1991); and J. Raz “Law and Value in Adjudication” in his The Authority of Law (Oxford: Oxford University Press 1979) 180–209.
I. Entchev“A Response-Dependence Theory of Precedent”Law and Philosophypublished online 10 February 2011 1. At first blush Entchev’s response-dependence account may seem appealing to the argument made here but in fact his point is narrower. Entchev argues that ‘court decisions are not self-applying but are applied (or not) by future courts which decide what if anything is authoritative about the original cases’ (9). Noticing that court decisions are not self-applying is important but Entchev still assumes that there is fixed content to the decision his point being that there is room for flexibility in terms of what (out of that fixed content) judges take to be authoritative.