| Sammanfattning: | This thesis aims to provide a philosophical foundation for the practice of following precedent in law. It argues that legal systems should adopt a practice of precedent that advances the Rule of Law instead of one that advances other values at the cost of undermining this ideal. This practice is called ‘precedent-following’. In virtue of precedent-following, later courts treat relevant precedents as normative legal facts favouring, and sometimes requiring, the same decision as before. A distinctive feature of precedent-following is that later courts always have a legal reason for following relevant precedent, even if the precedent is morally suboptimal, so long as it is not evil. This reason is by default non-obligatory. But a legal system may further advance the Rule of Law by imposing an obligation on later courts, in some cases, to follow relevant precedent. Thus, depending on whether courts have a non-obligatory legal reason or a legal obligation to follow relevant precedent, two modes of precedential reasoning may be distinguished. These are the persuasive and the authoritative modes. The thesis explains the pros and cons of the two modes and shows how some of their drawbacks can be managed in order to realise conflicting values, such as the value of not entrenching morally deficient decisions in the law. The thesis argues that, in a jurisdiction under the authoritative mode, the law should authorise a later court that is bound by a morally deficient precedent to either follow the precedent or exercise an equitable in conformity with certain conditions. This power, it is argued, would contribute to the justification of the authoritative mode, as courts would have an additional mechanism for dealing with morally deficient precedents. Thereby, it is argued, this power might also allow courts to avoid distinguishing morally deficient precedents in a disingenuous way, which is a way of enhancing the legitimacy of the common law.
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