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Dent, C; Cook, I --- "Stare Decisis, Repetition and Understanding Common Law" [2007] UMelbLRS 11

Last Updated: 8 April 2009

STARE DECISIS, REPETITION AND UNDERSTANDING COMMON LAW

Chris Dent[∗] and Ian Cook[§]

The works of Michel Foucault have not, so far, been employed so as to enable an adequate understanding of the functioning of the law. This article begins to remedy this situation. Past uses of Foucault’s work have failed to provide a satisfactory account of the relationship between the juridical and the disciplinary aspects of “the law” in general. The application of his ideas to the practice of the common law offers a way forward. In this article, we use Foucault’s ideas of discursive formations and discursive practices to understand the operation of the doctrine of stare decisis in the common law. It is uncontroversial to assert that the doctrine is difficult to define – this analysis demonstrates that this signifies its “always/already” nature. The understanding applied here indicates that stare decisis is best seen as a set of discursive practices – the most significant of which relates to the repetition of past legal statements. The doctrine, as a result, is both fundamental to the operation of the common law as a discursive formation and constitutive of those who participate in, and perpetuate, it – the lawyers and judges.

There are as many reasons that practising lawyers and judges ought not to read Foucault as there for Foucaultians to pay little attention to the processes through which “law” is made. Those interested in understanding how the law works, however, could gain much from understanding the law from a Foucaultian perspective. For, when such a perspective is applied to the production of common law greater sense can be made of many of the practices in which judges and legal advocates engage than that which is available from other forms of analysis.

Before we go further, however, it is important to make clear that a project derivative of Foucault’s work reveals what is happening in a way that is consistent with the self-understandings required of those who engage in making common law. We do not propose to turn the analysis of the making of common law on its head or to provide some radical re-understanding that does not reflect the self-understanding of those involved in the discursive formation. Our goal is to explain the self-understandings of those involved in producing “the law” in a way that produces a coherent account of the practices essential to the production of common law.

Central to these practices is that of stare decisis. It is by examining this regulative idea that we can develop a deeper and fuller understanding of common law as a separable discursive formation in the production of the episteme[1] of which “the law” (which is, itself produced by various discursive formations) is part. In short, common law represents a distinguishable discursive formation that produces law in the form of judgments that, together with a variety of other legal and disciplinary discursive formations, form the law.

This article is in two parts. In the first, and shorter, of these we discuss reasons why both those who study the law and Foucaultians get the law wrong. While this is a more general discussion of the law, rather than being specifically focussed on the production of common law, it provides a background for the second part, in which we explain how Foucault’s theories concerning the operation of discursive practices offers a unique, and in our view superior, understanding of common law. In this part, we discuss a variety of controls that, according to Foucault, are necessary for the constitutions of discursive formations and which are evident in the production of common law. Broadly speaking, these controls focus on the doctrine of stare decisis – a doctrine that, for the purposes of this article, is understood to reflect a set of discursive practices of which the repetition of past legal statements is the most dominant.

While the two parts are relatively independent, the way that lawyers get common law wrong is important to their ability to participate in the production of common law. As we indicated earlier, we are not seeking to overturn the self-understandings of those involved in the production of common law. Our intention is to show how those self-understandings function to produce the common law in the ways that, according to Foucault, discursive practices function to constitute discursive formations and the subjectivities necessary for the functioning of those discursive formations. We are not, then, suggesting that those involved in the production of common law should get it right. We are suggesting, however, that Foucaultians have failed to understand the law, and as a result the common law, despite the fact that Foucault’s work provides clear indication as to how common law can be understood. We hope that by providing this analysis we will encourage Foucaultians to think more carefully about the law, or at least the common law.

GETTING “THE LAW” WRONG

Before continuing with this explanation of the discursive formation that produces common law, some reasons why both those engaged in the production of common law and Foucaultians get the law wrong are worth noting. This discussion is, perforce, brief. The discussion of the way that those involved in the production of common law misunderstand their activity is, however, important to our defence of the use of Foucault’s ideas in examining common law, which we present in the following section.

1. Lawyers and a “naïve” understanding of the law

Like all who participate in discursive formations, those involved in the production of common law usually see themselves as engaged in a process of discovery that results in either increasingly closer approximations of the “true law” or, at least, the law that is true to a particular historical circumstance.[2] An alternative construction, which is compatible with the pursuit of true law, is that lawyers and judges seek to discover a “just outcome” or simply “justice”. In this way, those involved in the production of common law can see themselves as conduits for the emergence of an object (“true law”, “a just outcome”, or “justice”), rather than producers of a particular form of “the law” – a form of law that is both generally compatible with that produced by those engaged in the production of other forms of law (such as that produced as legislation) and in accordance with the overall tenor of the episteme of which the law is part.

Understanding “justice” as discovered is crucial to a refusal to recognise law as produced. For a focus on the production of law requires that attention be paid to the producers and the production processes in which they engage. Indeed, seeking to avoid being “seen” to be making law may be one way in which those involved in the production of common law negotiate their co-existence with those who engage in the production of “legislation” and “regulations” (with whom they must negotiate a relationship). In contemporary democracies, this negotiation is conducted according to governing principles of an episteme that requires that all individuals are capable of both “knowing” the law (ignorance of the law being no excuse) and being responsible for the application of the law to their lives (which is essential for governmentality[3]). This requires that expertise or authority cannot be consciously ceded to institutions that do not derive, or at least appear to derive, their legitimacy from the “will of the people”. To do this would be to apply a pre-modern episteme of place, obedience and authority. Thus, it is even more important that those involved in the production of common law understand themselves as discovering, rather than producing, “justice” than it is for scientists to understand themselves as discoverers, rather than producers, of knowledge in their field.

An important part of the self-understanding required for their engagement in the production of common law is that initiates receive a “proper” training for their engagement in the discovery of “justice”. This is important in that it presents just outcomes as discovered by those who have the correct skills or techniques, rather than produced by those who have been trained to produce it in a way that continues to make sense of the production process itself. It allows those involved in the production of common law to deny that the law is simply a product of what they do and to think of themselves as impartial discoverers and not partial producers. This allows them to disavow the self-constitutive function of the practices in which they engage and to understand a training in law as the promotion of the correct practices of discovery and not simply reproduction through the normalization of particular behaviours.

2. Foucault and a deficient understanding of ‘the law’

But just as those involved in the production of common law get the law wrong, most of those who follow Foucault’s treatment of the law also get it wrong. Hunt and Wickham have presented the reasons that they do so in their criticisms of what they refer to as Foucault’s expulsion of law.[4] The problem is Foucault’s ‘general equation of law with pre-modern forms of power’.[5] The result is a ‘conception of law as the commands of a sovereign backed by sanctions imposed on the bodies of the transgressors ... equates “law” with the punitive forms of criminal law’.[6] A consequence of this is that ‘Foucault relies heavily on a rather primitive equation of sovereignty and absolutism. His conception is constructed from a literal connection between political sovereignty and juridical sovereignty...’.[7] In the end, Foucault contends that in understanding modern government ‘law is not what is important’.[8]

State law is undoubtedly crucial to the form of law, but state law does not exhaust the forms of law.[9] Like Hunt, then, we ‘do not take the unitary character of the law for granted’ and ‘hold to a general conception of legal pluralism which posits a plurality of legal forms over which state law persistently, but never with complete success, seeks to impose a unity’.[10] Further, and again like Hunt, we view law ‘as emanating from dispersed sites of royal power, popular self-regulation, customary right, competing specialized jurisdictions (ecclesiastical, guild, commercial, etc.), local and regional autonomies, and other forms of law)’.[11] A result is ‘that state law is always involved with, if not preoccupied with, the task of either exercising control over or exempting from control the different forms of disciplinary regulation’.[12]

3. Law as a series of discursive formations of which one is common law

Taking what Hunt refers to as a “pluralist” approach leads us to think of the production of law as something that emerges from a (limited[13]) number of discursive formations, over which state law is sometimes, but not always and not necessarily, overlaid.[14] These discursive formations can be characterized according to the discursive practices that function to produce these formations and their objects. It is in this theoretical “context” that we seek to examine the discursive formation from which common law emerges.

GETTING COMMON LAW RIGHT

1. Law as underpinned by non-expressible practices

To be effective, the functioning of discursive practices must be taken to be part of normal behaviour amongst members of the discursive formation. As a result, the members of the discursive formation must work through those practices as smoothly as is possible. While newer members of a discursive formation must begin with a highly self-conscious engagement in discursive practices, this is as part of a process that will result in their adopting discursive practices with minimal self-reflection. That is, initiates to a discursive formation will require deliberate engagement with discursive practices that will result in a familiarity, and sense of naturalness, that will allow those practise to become “automatic” and to function as a constitutive “background” for their discursive formation.[15]

The automatic nature of internalised discursive practices has one important consequence for the capacity of a member of a discursive formation to choose particular courses of action when they are acting as members of the formation. That is, they self-regulate.[16] Lawyers, for example, “know” what it means to act as a lawyer because they have been trained to act in a particular manner. They, and judges, do not act in a particular way because they fear punishment,[17] but because they know it is the right thing to do. This means they are (self) constrained when it comes to acting in their professional capacity – they do not, and cannot, exhibit true “agency”.[18]

2. Stare decisis as a non-expressible practice

An example of internalised legal norms is the doctrine of stare decisis. Simply put, stare decisis relates to the use by judges of past decisions of the court when writing their judgments. It is defined as the ‘doctrine under which a court is bound to follow previous decisions, unless they are inconsistent with a higher court’s decision or wrong in law’.[19] In other words, stare decisis refers to the practices of lawyers and judges using, or avoiding, legal principles and earlier judgments of courts when arguing, or deciding, cases before them.

One manifestation of the way in which stare decisis functions as this background can be found in the fact that the specific rules relating to the application of stare decisis have been expressed in a variety of ways without this variation have any effect on the production of common law.[20] While the meaning of the Latin terms used in this phrase provides a starting-point for a discussion, the “common sense” that it represents requires that it work as a practice and not as a formula. Stare decisis (or more fully, stare rationibus decidendis) is a call for judges to ‘keep to the rationes decidendi of past cases’[21] but what they should actually do in keeping to this rationes is left unclear, as it must be. The facts that this practice is at the heart of the case law tradition and that there is no readily available judicial interpretation as to what constitutes the ratio decidendi (reason for deciding) of a case provide a clear indication of the importance of this practice to the discursive formation.

Even the secondary literature on this subject reflects the taken-for-grantedness of stare decisis. Commentators’ observations concerning the nature of the ratio include:

The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury.[22]

And

The ratio decidendi is the rule or principle of decision for which a given precedent is the authoritative source, whether that rule or principle is then to be treated as binding or only as persuasive in some degree for other later deciders of similar questions.[23]

These descriptions suggest that stare decisis is a discursive practice and not some simple formula for determining what, in general terms, constitutes the ratio of a case. That is, the fact that there is no readily available judicial interpretation of exactly what constitutes the application of stare decisis, as there is no specificity as to which parts of previous judgments must be followed, is a reflection of the fact that it requires no definition.[24] This creates a problem for any analysis of the law that fails to register the fact that it is a discursive formation that relies on inter-subjectively generated and perpetuated practices and not ‘objectively’ determinable formulae that are available to non-practitioners.

The nature of stare decisis as discursive practice is only a problem for an analysis designed to produce the “true meaning” of stare decisis, however, for the lack of rigorous definition does not prevent, indeed it is essential to, the use of the practice. Those lawyers and the judges who understand stare decisis as a tool or ‘object’[25] of the law come closer to expressing the “in-use” nature of stare decisis (as a “thing” to be used in order to discover the law). Understanding stare decisis as a tool allows for a degree of flexibility with respect to the “use” of past decisions. For its nature as a discursive practice constrains the production of “law” by requiring that those who preside over courts have to repeat elements of previous decisions in making a judgment in which “the law” is both made and applied.

Crucial to the operation of stare decisis as a discursive practice, or more fully as a set of closely related practices,[26] is the way that it both enables and constrains actions. It makes certain actions, such as the repetition of ratios for preceding cases (more often than not produced by subsequent judicial reflections on the principle handed down in previous decisions), essential to the production of law. And it does so without so restricting the possibility for “action” on the part of those generating the law as to make the principle, rather than the various performances and statements, responsible for the law. In this manner, the discursive practices of stare decisis represent an existential and inter-subjective ground in which being is available. To this extent, the doctrine constrains, directs and constitutes the “ground” for making judicial statements without providing the content for those statements. If this content was provided, it would allow the mechanisation of the production of common law, in which judges are replaced by machines, probably digital technologies, that simply dispense judgments according to determinable and determining rules that allow for only one outcome (a point that those who seek to “automate” medical diagnosis might bear in mind). Stare decisis produces a “space” then that appears neither as free nor determined and in which judicial autonomy is both present and absent.

Crucial to this is the determination of the “relevance” of a previous judgment. In determining “the law” to be applied in a particular case, a judge is required to “distinguish” previous decisions (i.e. not apply the ratio associated with those cases). The decision as to the relevance of a “precedent” is made by the judge, in part, on the basis of the competing legal argument of counsel. Stare decisis requires the citing of statements of “law” in previous cases by counsel, which must be accompanied by counsel’s justification for applying that “law” to this “case”. This justification could be based on a similarity of the facts of the case or by previous uses of the statement of “law” as a “precedent” in other cases. The judge then “weighs up”[27] all the arguments, including the claims as to relevance of the cited cases, and produces a judgment. A previous decision may be constructed as “binding” if a judge accepts its relevance according to principles associated with the making of “persuasive” arguments, including those that apply to the claims (and refutations of claims) of relevance made by counsel who argued for (and against) the application of a particular statement of “the law”.

This “flexibility of use” of the doctrine of stare decisis contradicts any claim that the doctrine is a rule of law that can be applied mechanically (as in mathematical rules) to any situation – rather than a discursive practice which regulates the interactions that result in the making of “law” by judges. The problem that arises with the conceiving of the doctrine as a rule, rather than a discursive practice, is that the law changes; for to treat stare decisis as a rule would require that the law is limited to what has gone before.

Previous commentators have observed the apparent paradox that this creates. Stone, for example, posed the question of ‘how this perpetual process of change can be reconciled with the principle of authority and the rule of stare decisis’.[28] Stone’s proposed resolution of this paradox was to recognise the indeterminacy of finding the ratio of a previous decision and to argue that it is the ‘unacknowledged, and even unconscious, creativeness’[29] of judges that solves the problem. In other words, Stone privileges judicial choice over the strict application of a determinate principle.

Stone’s resolution fails for two reasons.[30] First, because to propose judicial creativity is to project some form of independence on the part of judges, which is to offer a construction unavailable to those judges. This explains why Stone must present the judges’ creativity as unacknowledged and, better for our purposes, unconscious. This construction also reasserts a notion of authorship and independence for those who function within a discursive formation, which leads to the projection of a form of subjectivity unavailable in a Foucaultian analysis. This would not be a problem, at least for non-Foucaultians, if the positing of judicial creativity would have no effect on the legitimacy of the “law”. Judicial creativity, however, would call the predictability of “law” into question and mean that unregulated lawmakers were making law, rather than ruling on, law. Or in the words of Lord Campbell in Beamish v Beamish, a court that acted in this way ‘would be arrogating to itself the right of altering the law and legislating by its own separate authority’.[31] Understanding stare decisis as a set of discursive practices, however, allows for the positing of procedures that are not governed by determinable rules, yet produce predictability and change without the necessity to posit independent or unregulated consciousnesses as causal agents (or even unconsciousness).[32]

While it is a superior approach to that in which the common law is understood as providing closer approximations to the true law or justice, the problem with the “stare decisis as a tool” approach is that it may leave the analysis one step back. The approach provides no means for understanding the way in which the tool is used as a means to not only provide the basis for the statements of the law that judges make but to constitute the various subjectivities required for those statements. Stone recognises the indeterminacy of ratios and that the use of precedent produces changes to the law but his solution is to posit a phenomenon “judicial creativity” without acknowledging that this simply opens up the question of the source of this “creativity”. He simply, and for us unhelpfully, leaves it at the suggestion that the law operates and changes through the actions and choices of judges who appear as agents of change. Agency of this sort is neither consistent with the understanding of Foucault adopted here nor reconcilable with the political principles that, in most of the societies within which stare decisis operates, would cause disquiet at the effects of an unregulated and unaccountable “creative” judiciary.

To understand stare decisis requires recognising it as a set of practices, something that is done, that is required for particular utterances, some might contend performances, of “law”. In this understanding, the core of stare decisis is the judicial practice of referring to preceding statement of law, usually from a court of review, in making that statement of law that will govern a judge’s decision in a particular case. The new understanding of practices of stare decisis proposed here is as the repetition of statements of law that are presented in the course of legal argument (whether in the body of the “writing” judge or future judges) as requiring restatement as a necessary step in the handing down of a decision.[33] These statements of law include both what might putatively be referred to as ratio of previous cases (putative because alternative ratios can be presented for any particular case) and any previous statement of law that a judge may use in writing[34] a judgment. Crucially, in this context, the statements of law that are referred to may be those that a judge finds in the process of researching a decision, statements identified by counsel and, in the case of appeals or hearings before more than one judge, statements brought to light by other judges.

These statements are not limited to those statements that can be taken to be the ratios of preceding judgments. Repeated statements may also include legal principles and maxims (such as the positing of a “duty of care”) that, due to regular repetition, no longer require statement in the context of a particular case. Other repeated legal statements include those of “definition”, such as statements describing the limits of particular writs. Any phrase that describes an aspect of the law is repeatable under this discursive legal practice. Stare decisis contains the principle that deals with the repetition of the central statements of cases. The legal practice of repetition, however, is not limited to the specific citation of particular rules or ratios but to any statement contained within a preceding judgment.

This practice of repetition is similar to the doctrine of stare decisis but can be seen as both being wider than the doctrine and as operating on a more fundamental level, and, as a result, is more in keeping with a Foucaultian approach. When treated as a set of discursive practices, stare decisis is taken to be something that functions in its application. If the repetition of statements is taken to be a practice it is easier to understand the myriad of other practices associated with this one fundamental practice. The use of previous decisions is structured according to other practices. Whether a decision is taken to be binding, for example, relies, in part, on the way it is brought to the court by counsel. The use of an “appropriate” set of reports in marshalling previous statements of the ‘law’ (in the first instance by counsel and subsequently by judges) is also limited by a set of practices. Choosing to see this practice of repetition solely in terms of a narrow reading of stare decisis denies the constitutive power of the practice of the repetition of past legal statements that is important for a Foucaultian understanding of the law. It disallows the view that the practice of privileging previous statements creates the legal system as we know it. The common law would not be the same, would not function in the same way, if the practice of repetition was not applied in the manner in which it is applied.

Lawyers and judges cannot define the doctrine of stare decisis because it is “always/already” there. The practice of repetition of previous legal statements also pre-exists the practitioners’ understanding of law. The doctrine constructs the law to the extent that it cannot be defined; it cannot be explained without recourse to examples of it in practice. Cross and Harris, in the first chapter of their influential text, Precedent in English Law, provide little by way of an analysis of the doctrine and certainly do not provide an extended discussion of it. This is not intended as a criticism of this learned text, but an illustration of the fact that stare decisis must be understood as a discursive practice. That doctrine, however, can be seen as an example of the practice of repetition of past legal statements, and is therefore comprehensible (indeed, from a Foucaultian perspective, only comprehensible) in terms of the framework adopted in this article. This understanding does not alter the fundamental role that the practice of repetition plays in law but widens the scope of that which can be repeated and denies to judges the role of agents,[35] which is required by Foucault’s theories concerning discursive formations and discursive practices.

The constitutive strength of the doctrine of stare decisis rests on its lack of definition - that which can be limited in word can be distinguished as irrelevant or inappropriate. The wider practice of repetition operates on a much more practical level. It is because the assumptions underlying the use of previous statements are so deeply ingrained into legal practitioners, from the very beginning of their training, that they do not need to be repeated. The strength of the practice can be taken to be based on its width of application. In the following part the relationship between the practice of repetition and the common law will be examined. This will illustrate the depth of the relationship between the members of the legal profession and the statements of law they produce in their work as counsel and judges.

3. Common law as expressing forms of control associated with discursive formations

A Foucaultian understanding of stare decisis allows its central practice of repeating previous legal statements to be understood as a practice that is constitutive of “the law”.[36] It is a practice that constructs both “the law” and, through the processes of subjectification, the members of the legal discursive formation, the legal profession. More importantly, a Foucaultian analysis also enables an understanding of the ways in which stare decisis functions as a set of practices through which a variety of controls operate.

Foucault argued that three forms of control characterise the operation of discursive practices. These are external controls, internal controls and controls that are neither fully external nor fully internal.[37] External controls regulate the designation of authorised speakers. Internal controls regulate the forms of appropriate speech and activity for those who function within a discursive formation. Controls that are neither fully external nor fully internal regulate the relationships available and positions occupied by those who participate in a discursive formation. In short, this type of control results in the formation of hierarchies.

Each of these forms of control will be discussed in the sections that follow. In each case, the ways in which these controls operate will be described generally before being applied to the production of common law. From this the explanatory power of the concept of discursive practices in the context of the production of common law will be demonstrated.

(a) Stare Decisis and External Control

Foucault identified three techniques as important to external control. These are ‘forbidden speech, division of madness and the will to truth’.[38] For ‘it is the power of institutions and not the truth of the discourse that excludes its false competitors’.[39] In other words, the claim to truth of a particular discourse or discursive formation is not based on an objective Truth, but on the strength of its discursive practices. The designation of those authorised to speak is crucial to the effective functioning of a discursive formation. The constitution of authorised speakers, of necessity, implies the exclusion of non-authorised speakers.

These external techniques for management revolve around the capacity of members of the discursive formation to deny to “outsiders” the opportunity to be heard within that formation. The ability of those with perceived power to exclude people because of their utterance of the “forbidden” or their lack of knowledge of the “right” speech is in a ‘society like ours ... well known’.[40] Categories such as “the insane”, “the young”, and, in less enlightened times, “women” and “the disabled” act as barriers for entry into discourses of power for people who fit into these categories. Even simple requirements, such as particular education levels, prevent access for some. Their lack of schooling denies them possession of the “right speech”, which is considered essential for occupying certain positions in our society. The common law discursive formation is a good example of this. Children are not permitted to speak on behalf of the law, nor are others with an “insufficient” education. Even a person who has completed a Bachelor of Laws degree is not permitted to practise as a legal advocate until they have proven their “value” to the profession, in part by generating reports on cases, and are admitted to the Bar.

These external modes of control commence with “forbidden speech” and the “division of madness”. These techniques prevent those within the discursive formation from considering the words of those who have not been constituted as subjects of that formation. Their words are literally forbidden. Its exclusionary tendencies are perhaps the most obvious mechanism through which the practices of repetition shape the discursive formation. The practice is the privileging of past legal statements. When judgments are written, the words of the temporary visitors to the formation, such as witnesses, the words of the permanent subjects, counsel, and the legal statements of past judges are considered. No other statements are included in the formulation of the decision. Even the use of the words of visitors is limited, as witnesses can only provide information requested by counsel and certain types of evidence that they might provide (such as with respect to hearsay or unqualified opinion) are also excluded from judicial consideration.

An apparent exception could be made for secondary sources, such as academic works. However, even these secondary sources are not totally “outside” the discursive formation, as their authors are trained lawyers, or academics with legal qualifications. The end result is that only those who have been recognised within the common law discursive formation as having the ability to speak of the law can have their statements repeated in legal judgments. The effect of this is that those within the common law discursive formation are only allowed to pay heed to the words of sanctioned subjects. Outsiders are considered un-knowledgeable and, from a Foucaultian perspective, exhibit “unreason” or “madness” if they presume to speak law.

The third mechanism of external discursive control, the “will to truth”, is more subtle. Within the positivist discourse of Western culture ‘the division between true and false is neither arbitrary nor modifiable nor institutional nor violent’.[41] It simply “is”. This dichotomy between truth and falsehood is not “natural” in the world. It is a discursive construct that ‘rests on an institutional support ... [on] whole strata of practices, such as pedagogy ... books, publishing, libraries; learned societies ... [and] laboratories’.[42] From this perspective, the discourses of the “human” and “natural” sciences constantly reinforce the notion of a truth and their processes further reinforce this will to truth.

The pedagogy of the law, with its centuries of reports and writs, is based upon the production of a legal and juridical Truth. Justice will be found in the words of judgments. Any point of adjudication can be settled through recourse to previous recorded adjudications. The law reports hold the Truth to the law of the land; the discursive formation functions because of its members’ belief that the legal statements of past judges are the source of Truth.[43] The task of a judge deciding a case, then, is to apply the statements of “true” law in the law reports to the particular facts of the case at hand. In the rare situation where a factual situation does not readily fit into a past judgment, the subjects of the discursive formation, counsel and judges, will negotiate a suitable solution, still based on previous judgments. While the ‘common law must expand to keep abreast of modern life’,[44] it only does so on the basis of past decisions, on previous legal statements.

This “will to truth” is understood to extend further than just the “objective” truth claims of the discourse. ‘For Foucault ... the ethical substance, the prime material of moral conduct, is the “will to truth”’.[45] This final mechanism of external discursive control produces the Truth of the legal discursive formation. This exclusionary practice has to be part of the constitution of the subjects for it to be effective. The practice of repetition, in this view, compels those within the discursive formation to behave according to the doctrine. Counsel will seek out the appropriate precedents. Judges will expect to be told of the appropriate precedents and, in turn, will repeat some of the legal statements contained in these precedents. This is the “right”, or “truthful”, way to conduct the practice of judicial adjudication. In this way, the practice of repetition functions as an external form of control that is internalised by those within the law.

(b) Stare Decisis and Internal Control

The internal techniques of discursive control include, in Foucault’s words, ‘principles of classification, of ordering and of distribution’.[46] These principles relate to the practices of assigning roles, or classifying individuals, and are particularly evident in the sciences (for example, the Linnean categorisation of an organism using Latin names for its phyla, order, family, genus and species). More broadly, categories in general are taken to have been formed through the histories of the discourses and have been kept as ‘ritualised sets... which are recited in well-defined circumstances’.[47] This section will make explicit the role of repetition of past legal statements in the perpetuation of this categorisation.[48] It will describe the practice of repetition in terms of the processes of ordering within, and therefore underlying, the common law discursive formation.

The practices associated with the doctrine of stare decisis mean that judges, at all levels, understand themselves as fitting into an appropriate category, with each of these categories being assigned particular powers. Judges are considered to sit on “inferior” or “superior” benches.[49] While there is a category of judges who represent the ultimate judicial authority, even those judges must abide by the processes of ordering by which all other Courts are regulated. It would appear that the organisation of the judicial system into a hierarchy (or series of hierarchies) would fit into this category of internal control, and this category does capture something of the effects of the hierarchy of courts. This does not exhaust the effects of the hierarchy of courts, however, as it produces yet another form of control, which will be further explained in the next sub-section.

Stare decisis, understood here as the practice of repeating past legal statements, is a form of categorisation that goes beyond the labelling of the courts and their positions. Previous cases are also differentiated and this affects the treatment of past cases. In short, past judgments can not be treated equally. Statements of law, then, must be understood in light of the conditions in which they were made and recorded. Reported judgments are treated differently from unreported judgments and official from unofficial reports. Within the category of recognised precedents, there are also those that contain statements that cannot be overlooked, are certainly not followed, and those that contain statements that can be overlooked (in legal discourse this can be understood in terms of the binding/persuasive dichotomy).

The practice of repetition does not prohibit judges from using any past legal statements, but the internalised form of “forbidden speech” means that they have to explain their repetition of a statement from an unreported or unofficial judgment. No statements in preceding judgments are excluded from future adjudications but their conditions will be taken into account in restatements. This variation in the treatment of particular legal statements is an internal control, rather than an exclusionary external control, as it only affects the weight given to particular statements of the law. In the case of the reported/unreported dichotomy, an oft-quoted reported judgment will be treated differently from an unreported judgment. In terms of the use of either official or unofficial reports, it is the statements contained in the official reports that are more likely to be repeated.

The decision as to whether a statement in a precedent is “binding” is, to some extent, a function of the specific decision event. A judge’s apparent “agency”[50] will be performed in accordance with differences in the categories of the courts (their relative positions), the categories of evidence and facts (relative fact situations) and, perhaps most importantly, the categories of specialised areas within the common law discursive formation (this is, of course, tied to the categories of fact situations – statements about corporate law may, for example, be more applicable when a party to an action is a company). A judge will also make a decision in the knowledge that if her/his decision is “wrong” then procedures within the formation, the appeals process, will “correct” the “mistake”.

It is the operation of procedures of organisation that produce discursive formations and institutions. If the practice of repeating past legal statements is the basis for adjudication, then mechanisms and procedures that control the selection of statements must be in place, which will also have the effect of limiting the number of past cases that have to be addressed. The classification of law into criminal/civil/administrative/ tort divisions and the division of decisions into reported/unreported/official/unofficial, then, are necessary for the regulating of the practice of repetition. As mentioned above, the organisation of the judicial system into a hierarchy (or series of hierarchies) is linked with this form of internal control. The process in which a hierarchy is produced that operates for internal control can also be seen as a process of what Foucault described as rarefaction. This mode of control will be more fully explained in the following sub-section.

(c) Stare Decisis and Control that is neither Fully External nor Fully Internal

This final sub-section explores those processes of discursive control that are neither fully internal, nor fully external forms of control. That is, those processes of ‘rarefaction... of the speaking subjects’.[51] As Foucault put it:

none shall enter the order of the discourse if he does not satisfy certain requirements or if he is not, from the outset qualified to do so. To be more precise: not all regions of the discourse are equally open and penetrable: some of them are largely forbidden (they are differentiated and differentiating), while others seem to be open to all winds and put at the disposal of every speaking subject, without prior restrictions.[52]

A principal technique for creating these restrictions is the organisation of the court system into a hierarchy (or series of hierarchies). The “speaking subjects” mentioned above comprise everyone in society who is capable of speech and not just those who form within a particular discourse. Within the common law discursive formation only a few “speaking subjects” from the community at large are heard. Some claim a place as litigants. Some are compelled to act as jurors. Some become witnesses. While these “speaking subjects” are not refused entry to the practices of the discursive formation, their access is limited. That is, subjects such as witnesses and jurors are allowed into the courts but not the law.

There are some “speaking subjects” who, through their success within the educational discourse, have the option to participate directly in the legal discursive formation. That is, given sufficient academic achievement, these “speaking subjects” attend university, graduate and then, after a period of further applied training, gain acceptance into the discursive formation as counsel. Of these, a few “speaking subjects” are given certain privileges by those through whom power passes within the discursive formation (Queen’s Counsel, magistrates, judges). Positions within the common law discursive formation are not equally open and accessible, even to those within the formation.

The judicial hierarchy, then, represents a form of internal control – classification and ordering, but it can also be taken to represent a form of external control, as it limits the availability of contact with those outside the discursive formation. The regulation of the practice of repetition is a manifestation of this privileging of positions. Given the written nature of the law, changes to the law are brought about through the production of written legal statements, and the privileging of some of these writings reflects the authors’ positions within the law. Witnesses or jurors, whilst potentially integral to the outcome of the case in which they are involved, will not be included as individuals in the records of judgment, because they are not constituted as members of the formation. It should be noted that this, in part, is due to the Truth that the courts of review are the “speakers” of the law. However, this emphasis on the “higher” courts is indicative of the distribution of power within the law. It also can be seen to function as a mechanism for denying outsiders a direct voice in the law that is carried forward in judgments.

Even statements from the officers of the court, legal counsel, are rarely included in final judgments, and statements by those who instruct barristers are even less likely to be included. At the court of review level barristers are very important to the content of a judgment, as they provide judges with the arguments and the citations which tend to form the basis of the final decision.[53] Yet the hierarchies that operate within the discursive formation and the methods of reporting that are used severely limit any repetition of the statements of counsel. While some reports do include counsel’s arguments immediately preceding the judges’ decisions, in practical terms (and in definitional terms) the practice of repetition relates to past judgments, not past arguments. The regulation of the practice of repeating previous legal statements determines that the words of counsel are not taken into account in the practice. The power of the discursive formation, from the perspective adopted here, flows through the words of the judges alone.

The difference between the amounts of attention paid to the decisions of magistrates and to those of judges can also be taken to reflect the process of rarefaction to which Foucault refers. Magistrates, even though superior in terms of numbers, are not usually amongst those adjudicators whose decisions are recorded in law reports. The “further up” the judicial hierarchy she or he is, the greater the potential for a judge’s decision to be included in the legal record for future availability as a “precedent”. The limiting of the potential for repetition of the words of magistrates also acts as a process of rarefaction of the language accepted into the discursive formation. Magistrates and the courts of first instance deal, to a significant extent, with questions of fact and the comparison of specific evidence with often repeated statements of law.[54]

The practice of repetition is almost exclusively concerned with the judgments of the courts of review. Thus, the practice generates “law” because questions of fact have been largely dispensed with by the time the case has passed the courts of first instance. The statements of witnesses are not included in a judgment. The statements of law that are repeated in later judgments become the law. Thus, the discursive practices of privileging written statements generated within a delimited range of courts are bound up with the processes that produced judicial hierarchies. Through the processes that differentiate and assign values to different statements, the practice of repetition also functions as the third, and final, form of discursive control, that of rarefaction - a mode of control that is neither fully internal, nor fully external.

CONCLUSION

That many lawyers and judges see stare decisis as a tool to be used for discovering the law is understandable. This assessment, however, does not account for the constitutive power of the practices associated with the doctrine. That is, it is now possible to view the practice of the repetition of legal statements, the core element of the doctrine, as more than just an interpretive tool of the legal profession (we do not, however, suggest that it is wrong to see the doctrine as a tool to be utilised). These practices are fundamental to the constitution of the law as we now know it – an importance reflected in their “always/already” nature. From a Foucaultian perspective, the practice of repetition is the aggregate of several discursive practices that constitute those people who operate as the legal profession. That is, the law is structured according to the use and effects of practices of repetition. While no lawyer would deny the importance of this practice, this analysis takes that assumption further and suggests that the practices that govern the repetition of previous legal statements provide the foundation for the production of common law.

This, then, is a major step forward in the application of Foucault’s ideas to the operation of law in Western society. This article has moved beyond the debate as to the juridical/disciplinary nature of law in his thought. The separation of the common law discursive formation, for the purposes of analysis, from the broader legal discourse enables the assessment of legal practices as constitutive of those trained in the law, and therefore, of the law itself. Further, this focus on role of specific practices in the self-regulation of the legally trained is a step towards a deeper understanding of the manner in which the law, and all its attendant mechanisms, functions to maintain the disciplinary (self) regulation of the citizens of the state.

References

Primary Legal Sources

Beamish v Beamish [1861] EngR 475; 9 HLC 274.

Hanson v Wearmouth Coal & Sunderland Gas [1939] 3 All ER 47.

Mabo v Queensland (No. 2) (1992) 175 CLR 1.

Secondary Sources

John L. Austin (1975) How to do Things with Words, 2nd edition, Harvard University Press.

John H. Baker (1990) An Introduction to English Legal History, 3rd edition, Butterworths.

Rupert Cross and J. W. Harris (1991) Precedent in English Law, 4th edition, Clarendon Press.

Margaret Davies (1996) Delimiting the Law, Pluto Press.

Arnold I. Davidson (1986) ‘Archaeology, Genealogy, Ethics’ in DC Hoy (ed), Foucault – A Critical Reader, Basil Blackwell.

Chris Dent (2003) ‘Reflecting on Continuity and Discontinuity in “the Law” – An Application of Foucault’s Archaeological Method in a Reading of Judicial Decisions in Negligence’, PhD Thesis, Murdoch University.

(2005) ‘“The Privileged Few” and the Classification of Henwood v Harrison: Foucault, Comment and Qualified Privilege’ [2005] GriffLawRw 3; 14 Griffith Law Review 34.

Michel Foucault (1972) Archaeology of Knowledge, Routledge.

(1977) Discipline and Punish, Peregrine.

(1981) ‘Order of Discourse’, in R Young, (ed) Untying the Text: A Post-Structuralist Reader, Routledge & Kegan Paul.

(1983a) ‘On the Genealogy of Ethics: An Overview of Work in Progress’ in H Dreyfus and P Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, 2nd edition, University of Chicago Press.

(1983b) ‘The Subject and Power’ in H Dreyfus and P Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics, 2nd edition, University of Chicago Press.

(1991) ‘Governmentality’ in G Burchell et al (eds), The Foucault Effect: Studies in Governmentality, Harvester Wheatsheaf.

William S Holdsworth (1935) ‘Precedents in the Eighteenth Century’ 51 Law Quarterly Review 441.

Alan Hunt (1992) ‘Foucault’s Expulsion of Law: Toward a Retrieval’ 17 Law & Social Inquiry 1.

Alan Hunt and Gary Wickham (1994) Foucault and Law – Towards a Sociology of Law as Governance, Pluto Press.

Neil MacCormick (1987) ‘Why Cases have Rationes and what these are’ in L Goldstein (ed) Precedent in Law, Clarendon Press.

Lois McNay (1994) Foucault – A Critical Introduction, Polity Press.

Vanessa Munro (2001) ‘Legal Feminism and Foucault – A Critique of the Expulsion of Law’ 28 Journal of Law and Society 546.

Peter Nygh and Peter Butt (1997) Australian Legal Dictionary, Butterworths.

Eric Paras (2006) Foucault 2.0: Beyond Power and Knowledge, Other Press.

Stephen R. Perry (1987) ‘Judicial Obligation, Precedent and the Common Law’ 7 Oxford Journal of Legal Studies 215.

Paul Rabinow (1997) ‘The History of Systems of Thought’ in P Rabinow (ed) Ethics – Subjectivity and Truth, The New Press.

Simon Roberts (2005) ‘After Government? On Representing Law Without the State’ 68 Modern Law Review 12.

David R. Shumway (1989) Michel Foucault, Twayne.

Brian Simpson (1986) ‘The Common Law and Legal Theory’ in W Twining (ed) Legal Theory and Common Law, Basil Blackwell.

Carole Smith (2000) ‘The Sovereign State v Foucault: Law and Disciplinary Power’ The Sociological Review 283.

Julius Stone (1968) Legal System and Lawyers’ Reasonings, Maitland Publications.

Victor Tadros (1998) ‘Between Governance and Discipline: The Law and Michel Foucault’ 18 Oxford Journal of Legal Studies 75.

Ludwig Wittgenstein (1967) Philosophical Investigations, 3rd edition, Blackwell.

[∗] LLB/BA(Hons), PhD, Research Fellow, Intellectual Property Research Institute of Australia, Law School, University of Melbourne. The authors would like to thank the helpful comments of the anonymous referees who have assessed this piece.
[§] BA (Hons), PhD, Senior Lecturer, Politics and International Studies, Murdoch University.
[1] ‘The episteme is the condition of possibility of discourse in a given period; it is an a priori set of rules of formation that allow discourses to function, that allow different objects and different themes to be spoken at one time and not at another. ... The episteme is... anterior to ... epistemological forms of reflection. The latter, along with empirical forms of knowledge, is determined by the a priori rules of discursive formation. The episteme constitutive of such knowledge is situated in what Foucault calls a “middle region” between the “encoded eye” (empirical knowledge) and reflexive knowledge: “This middle region, then, in so far as it makes manifest the modes of being of an order, can be posited as the most fundamental of all: anterior to words, perceptions, and gestures... in every culture, between the use of what one might call the ordering codes and reflections upon order itself, there is the pure experience of order and its mode of being”’: McNay (1994), pp 52-3.
[2] The notion of the “production of law”, as discussed in this article, focuses on the work of the courts other than those of the highest appellate level (the High Court, the House of Lords). It is arguable that it is accepted that the High Court does “discover” new law (Mabo v Queensland (No. 2) (1992) 175 CLR 1 is a common example of this), however, such “discovery” is still demonstrated and justified in terms of the practices described here.
[3] Foucault (1991).
[4] Hunt (1992) had previously presented this argument, in a more extended version.
[5] Hunt and Wickham (1994), p 59.
[6] Hunt and Wickham (1994), p 59.
[7] Hunt and Wickham (1994), p 61.
[8] As quoted in Hunt (1992), p 7.
[9] A more complex understanding of Foucault and the law has begun to emerge. See, for example, Tadros (1998) and Munro (2001). These commentators still, however, focus on state law – using examples of the criminal law – rather than engaging with the detail of the common law.
[10] Hunt (1992), p 5.
[11] Hunt (1992), p 8.
[12] Hunt (1992), p 22.
[13] We do not go as far as the “legal pluralists”, described by Roberts, who insist ‘upon attaching the identity “law” to a disparate range of normative orders’ and who refuse to acknowledge any centralizing tendency that results from the attempt to produce government: (2005), pp 13-16.
[14] There is a sense of the common law discursive formation operating within the legal discourse in the conclusions of Carole Smith: ‘[A]ctors who occupy the juridical field may share a disciplinary definition of [a] “norm” and allow some moral slippage in their judgments, particularly in the lower courts. However, particular instances of transgression cannot negate the centrality of sovereign law as a pre-eminent site of power or of the legal principles which it holds dear’: (2000), p 304.
[15] The work of Munro does highlight the ‘ability of law to operate through both juridical and disciplinary mechanisms’: (2001), p 557. We contend that the stare decisis may be understood as normatively constituting those who exercise power within the common law discursive formation.
[16] For Foucault’s notion of subjectification see his (1983a) and (1983b).
[17] As in a disciplinary society; for a discussion of shifts in the forms of governance in Western society see Foucault (1977) and (1991).
[18] It is not necessary, in this article, to take the extreme anti-individualist position evident in some of Foucault’s work (see, however, Paras (2006) for a discussion of the re-insertion of the notion of subjectivity in Foucault’s later writings). It is sufficient to highlight that judges as writers of judgments, given their position as the elite of the legal discursive formation, are amongst the most effective self-regulators in law. In other words, they, more than other lawyers, restrict their own behaviour to that which is in line with legal norms (at least when it comes to acting as judges).
[19] Nygh and Butt (1997) s.v. stare decisis.
[20] Cross and Harris (1991), p 5.
[21] Cross and Harris (1991), p 100.
[22] Cross and Harris (1991), p 72.
[23] MacCormick (1987), p 156.
[24] Those familiar with Wittgenstein’s later philosophy of language will recognise a similarity between this point and his proposition that meaning is use. See Wittgenstein (1967) and Austin (1975).
[25] Lord Mansfield, cited in Holdsworth (1935). More recent commentators have characterised stare decisis as a ‘proposition ... to preserve a measure of neutrality’: Perry (1987), p 235; however this does not help any quest for to develop a formula for determining the ratio of a judgment.
[26] The most significant practice associated with stare decisis is that of the repetition of past legal statements. Other connected practices include, for example, those related to the correct citation of past decisions and the manner in which judges are referred to when quoting them.
[27] The presentation of ‘law’ as formulaic, and as a result scientific, may be noted in the metaphor of weighing and, more clearly, in the use of scales in the iconography associated with “the law”.
[28] Lord Wright quoted in Stone (1968), p 230.
[29] Stone (1968), pp 304-5.
[30] Stone’s resolution is, however, better than attempts to construct the law as in a trajectory whose telos is true law (such as might be associated with natural or divine law).
[31] [1861] EngR 475; 9 HLC 274 at 339.
[32] Other theorists also see the common law as a set of practices. Simpson, for example, sees it as a ‘customary system of law in [the] sense that it consists of a body of practices observed and ideas received over time by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts’: Simpson (1986), p 20. The difference between his and our assessment of the practices is the degree to which the practices, in our formulation, are constitutive of the common law itself and the lawyers and judges who practise it.
[33] We are neither the first to consider the law as an institution which operates through the repetition of past statements or to discuss such an idea from a post-modern perspective. Margaret Davies (1996), for example, engaged with that notion. Her project differs from ours; inasmuch as her work was a Derridean, rather than a Foucaultian, analysis.
[34] The practices associated with writing, recording and organising case reports so that they are available to later judges and counsel are essential to the discursive formation. Indeed, imagining stare decisis without practices associated with writing and recording judgements is impossible.
[35] At least the role of an agent that exercises complete free will is denied to judges in the perspective adopted here. The capacity, allowed to the judge by legal discursive practices discussed in this section, to “select” the most appropriate legal statement to repeat in a given judgment can be seen to reflect a limited form of “agency”.
[36] This, then, means that the article can be seen as an “archaeological” approach to the analysis of law. For Foucault, an archaeology describes the ‘rules of formation’ of a given discursive formation (1972), p 167; or, more completely, the purpose of the method is ‘to isolate the level of discursive practices and formulate the rules of production and transformation for these practices’: Davidson (1986), p 227. For a more thorough description of the archaeological method and an application of it to law, see Dent (2003).
[37] These controls are discussed in Foucault (1981).
[38] Foucault (1981), p 55.
[39] Shumway (1989), p 104.
[40] Foucault (1981), p 52.
[41] Foucault (1981), p 54.
[42] Foucault (1981), p 55.
[43] Except in cases where their statements are appealed. In that case, the words of the judges of the final court of review in that particular case are held to be the Truth.
[44] Hanson v Wearmouth Coal & Sunderland Gas [1939] 3 All ER 47 at 54 per Goddard LJ.
[45] Rabinow (1997), p xxix.
[46] Foucault (1981), p 56.
[47] Foucault (1981), p 56.
[48] For a detailed exploration of internal discursive controls and the common law see Dent (2005).
[49] The judicial hierarchy is another aspect of the discursive formation that has changed over the past 250 years. However, from the 13th century onwards, ‘every court of record was subject to the surveillance of some other tribunal to ensure that in giving judgment it did not err on the face of its record’: Baker (1990), pp 157-158. The procedures have changed, but there has been an internal structure to the discursive formation that allowed decisions to be revisited.
[50] A judge’s agency cannot be taken, in the perspective adopted in this article, to be “true agency”. As stated above, a subject of a discourse does not have the capacity to make a “free choice”. Subjects of discourses can only choose those actions made available by the practices of their discourse.
[51] Foucault (1981), p 61.
[52] Foucault (1981), pp 61-62.
[53] Counsel who appear before courts of review are also a product of the processes of rarefaction. That is, such counsel tend to be “Queen’s Counsel” (or their equivalent). This “rank” is awarded only after the barrister has demonstrated her or his capacity to perform, to a high level, the discursive practices necessary to appear as counsel in a court.
[54] Further, witnesses do not speak the language of law, but that of their own processes of subjectification. Defendants will speak the language of their upbringing, police prosecutors will speak the language they learnt in their training as police officers and the expert witnesses will speak the language of their specialty.