Overruling as a speech act: Performativity and normative discourse

In the common law system, judges are said to be bound by precedents decided in courts of the same level or above. However, in higher courts, under certain conditions, they have the right to overrule. Overruling declarations may be analysed as performative speech acts, having the effect of changing the law. This analysis raises both linguistic and legal problems, discussed with reference to English and American law and language. As the judges are reluctant to be seen to be assuming a legislative function, they tend to use indirect rather than explicit language, especially in the most significant cases. Alternatively, they present their overruling decisions not as new legislation, but rather as declarations of the true state of the unchanging common law. However, this view implies increased illocutionary force, as it may involve retrospective application. Secondly, the legal validity of overruling declarations depends to a large extent on their perlocutionary effects. Even after successful performance, these effects may be cancelled by later decisions in higher courts. Finally, the legal effect of overruling decisions suggests a close relation between performativity and normativity. However, this relation does not in itself provide a satisfactory explanation of the normativity of judicial discourse.