Wargan, P; (2013) Legal Sentience and the Problem of the Instant: A Critical Assessment of the Temporal Structure of Precedent and its Implications for Legal Authority. UCL Journal of Law and Jurisprudence , 2 (1) pp. 278-302. 10.14324/111.2052-1871.011.

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Abstract

This paper assesses the authority of precedent from a phenomenological standpoint. Phenomenology distinguishes between two temporal models. One describes time in an idealised form, as a divisible chain of instants or events. The other looks at lived temporality as fluid and indivisible duration. In the system of precedent, we witness an interaction of both models. The legal order is constructed from slices in time that become the building blocks of future judgments. Precedents are binding for a potentially indefinite period and carry transcendental weight. But they are also entirely dependent on the occurrence of disputes in the lived world. If the law’s structural stability is to serve as a source of its authority, it is undermined by this paradox because its structure lacks the consistent input it demands. But this paper considers an alternative source of authority: the common law’s awareness of its structural shortcomings, and the mechanisms it has developed to overcome them.

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