What Does History Matter to Legal Epistemology

Bibliographic Data

ID12955142
AuthorsMaks Del Mar (0000-0002-8242-5867, Queen Mary University of London, corresponding author)
Year2011
Volume5
Issue3
Pages383-405
Publication date2011-01-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueJournal of the Philosophy of History (JOURNAL)
Journal identifiersISSN: 1872-261X • E-ISSN: 1872-2636
PublisherBrill (PUBLISHER • NL)
DOI10.1163/187226311x599871
OpenAlexW3122041730
LanguageEN
Citations received1

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

Construal level theory · Content (measure theory · Epistemology · Inference · Political science · Relevance (law · Set (abstract data type · Social science · Sociology · Variety (cybernetics · Computer Science · Judicial and Constitutional Studies · Law · Law in Society and Culture · Legal Education and Practice Innovations · Mathematics · Philosophy

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