Precedent, Exemplarity, and Imitation

This chapter examines precedent in law from an exemplarist perspective. First, it develops an account of precedent as a specific kind of exemplar. More precisely, it claims that precedents as exemplars have a dual ontology as both typical and unique, embody a public, object-based, and critical kind of exemplarity, and have emotional, monumental, and aesthetic dimensions. Next, it gives an account of reasoning by precedent as a kind of imitative reasoning. From this analysis emerges a view of precedential reasoning as a collective and historical process that has both unreflective and deliberative components, combines adaptative and formal imitation, is both backward- and forward-looking, and aims at striking a balance between faithful transmission and transformative innovation. Lastly, the chapter discusses the role that precedent plays in law’s development in the context of larger questions about imitation-driven cultural evolution. This perspective allows us to see precedent following as a central mechanism which secures continuity while enabling change, and unveils some complexities involved in the process whereby precedent contributes to the growth of the law. In short, this chapter shows that exemplarism illuminates important aspects of the nature of precedent, reasoning by precedent, and its role in law’s development.