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Common Law Reasoning & PrecedentA lot of people think that something that wasn’t done before is a reason to not do
it. In countless instances, out of law as well as in it, the fact that something was
done before provides the reason to do it that way again.
An argument from precedent looks forward, asking us to view today’s decision as
a precedent for tomorrow’s decision makers. Today is not only yesterday’s
tomorrow; it is also tomorrow’s yesterday. A system of precedent therefore
involves the special responsibility accompanying the power to commit the future
before we get there. Non-judicial precedents of the past also arrive at the present
carrying with them their original characterizations. We necessarily and
continuously reinterpret the past as we proceed into the future. In making a new
decision, we must acknowledge its many possible subsequent characterizations,
and thus the many directions in which it might be extended. Only the precedents
of the past stand before us with their generations of characterizations and
recharacterizations.
When reasoning from experience, the facts and conclusions of the past have no
significance apart from what they teach us about the present. The probability
that the present will be like the past both determines and exhausts the value of
the previous experience. If we are truly arguing from precedent, then the fact
that something was decided before, gives it present value despite our current
belief that the previous decision was erroneous. The current decision maker may
choose to conserve present decisional recourses by relying on the prior decision
maker’s experience, arguing: who am I to disagree (regarding the decision before
him).This reasoning, as precedent, is as a norm that limits the decision maker’s
(of today) flexibility. The prior decision does, or should, not constrain the present
decision and the present decision maker violates no norm by disregarding the
previous decision. If precedent is seen as a rule directing a decision maker to
take prior decisions into account, than it follows that a pure argument from
precedent depends only on the results of those decisions, and not on the validity
of the reason supporting those results. But, earlier decisions have a status that
must be respected by a later decision maker. This is also seen in the fact that
lower courts are expected to respect the decisions of higher courts in their
hierarchical ordering.
A naked argument from precedent thus argues that a decision maker give weight
to a particular result regardless of whether that decision maker believes it to be
correct and regardless of whether that decision maker believes it valuable in any
way to rely on that previous result.
Rules of Relevance
No two events are exactly alike. It is, because of this, clear that the relevance of
an earlier precedent depends upon how we characterize the facts arising in the
earlier case. In this determination of the relevant similarities, we must extract
which similarities are important and which we can safely ignore. Rules of
relevance allow us to distinguish the precedential from the irrelevant. Rule of
relevance may also be explained as a choice among alternative
characterizations. Precedent depends upon such rules, which are both formed
by that present time and culture. Thus: precedent depends on rules, and those
rules themselves depend on (the) context (of that time and case).
, The task of a theory of precedent is to explain, in a world in which a single event
may fit into many different categories, how and why some assimilation is
plausible and others are not.
Categories of Decision and Categories of the World
Identifying the central place of a rule of relevance is only the first step. We must
still locate the source of the rules enabling us to call something similar to
something else.
The articulated characterization
At times, a decision will be accompanied by an articulated and authorities
characterization of the decision and its underlying facts. This articulated
characterization constrains the use of subsequent and inconsistent
characterizations.
Rules can be broken, but to justify breaking a rule is more difficult than to take
the same course of conduct in pursuit of or in the absence of a rule. But it is clear
that no decision in the real world is completely devoid of characterizations.
The roots of characterization
The problem is to determine what constrains a decision maker’s control over the
categories of assimilation. The legal analogue of philosophical naturalism lies in
one corner of that chamber of justice horrors called formalism. For a formalist,
their conception of precedent is like rules of relevant that track the natural
patterns of the world around us (characterization is natural).
Opposed to this, there is Normalism, also known as Realism. According to
Realists, decision makers should mold the precedents of the past to the needs of
the present (characterization is judicial choice). They think that judges
should make their decisions for today alone, not for all of time.
The 3rd view is that decision making within the legal structure is constrained by
the larger societal and linguistic categories that help to constitute the conceptual
apparatus of lawyers and judges (characterization limited by social context). An
example of this dependency of legal decisions on the language and
conceptualization of the larger world in which law operates, is given in Federal
Baseball Club v. National League.
In this case it was thought by the larger social and linguistic universe that a
baseball game and the Fourth of July parade are both in the same category,
therefore it was. The law, thus, relies significantly on social and linguistic
categories drawn from its larger environment.
The price of precedent
The most obvious is that a decision maker constrained by precedent will
sometimes feel compelled to make a decision contrary to the one she would have
made, had there been no precedent to be followed. A current decision maker is
told to follow the decision of a previous case involving assimilable facts. But the
current decision maker of today is the previous decision maker of tomorrow. This
fact causes the current decision maker to be constrained by precedent even if
there has been no prior decision. Thus, the conscientious decision maker must
recognize that future decision makers will treat her decision as precedent.
The question of weight
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