Thursday, October 2, 2008

Dent and Cook on Foucault, Stare Decisis and the Common Law

I've never seen Foucault featured in the description of a paper on stare decisis, but they do fit together in this work. Stare Decisis, Repetition and Understanding Common Law is a recent article by Chris Dent, University of Melbourne Law School and Ian Cook, Murdoch University. It appeared in the Griffith Law Review (2007). Here's the abstract:
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.
The authors clarify their approach in the text:

It is important to make clear that a project derivative of Foucault’s work reveals that 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 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.