Authenticity as a Justification for Precedent

Abstract

This article argues that Heidegger’s concept “Authenticity” can be used to provide a justification for the doctrine of precedent beyond traditional predictability and equality arguments. This justification is based on an attitude towards existence itself rather than prescriptive claims about judging. The article demonstrates that a Heideggerian description of adjudication can allay the fears of writers such as Hobbes and Holmes that adherence to precedent might impede reason or justice. It further suggests that precedent presents judges with a rare opportunity to develop their own sense of reason or justice in adjudication. Particular emphasis is placed on efforts by adjudication to capture the nature of real entities. For illustrative purposes, use is made of the concept of a “lease” in the English case Ashburn Anstalt v. Arnold.