The Illocutionary Force and the Perlocutionary Effects in the “static” analysis of the judicial precedents

Abstract

This article aims to set out some theoretical and methodological reformulations about “static” analysis of judicial precedents. The purpose is to review the explanatory “yields” that analytical philosophical observations have had in the practice of using precedents in futures cases. Particular reference will be made to “illocutionary force” and “perlocutionary effects” in the speech acts, in order to differentiate between (i) the ascribing rule that defines and establishes the normative meaning of the juridical statements, and (ii) the analogical rule about following the ascribing rule. As regards to the last, the paper depicts some critical observations against the traditional thinking about the structure of analogical rule in the precedents issue. The paper concludes with some examples that illustrate the defended ideas.