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Precedents in law

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Maarten

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I have been reading about the state of property rights in the US, and one thing that constantly seems to pop up there is the power that legal precedents play. Can anyone explain where that comes from? I am not altogether sure that such a reliance upon earlier decisions is correct and desirable, because it seems that to a large extent it just allows people to acquiesce to past decisions whether they were good or bad. It seems that the mere fact that it happened, as such, is taken to mean that it must therefore be a good decision.

That's probably an oversimplification, but could anyone with more experience in legal matters explain where this concept comes from, and if I am missing something?

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The theory behind why it is necessary, if I recall correctly, is so that the law can be consistent over time - ie, you do not get two rulings in similar cases which contradict each other. It lends the law an air of permanancy and knowability - ie, if you study past case histories, except in unusual circumstances, you can get a pretty good idea of how the law applies.

This is especially important with a govt that can do all sorts of things and which often contain very ambiguous or contradictory language. In a more proper political system the reliance on precident may not be necessary, but I think thats a very specialized question for legal scholars to bat around more than anything.

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The theory behind why it is necessary, if I recall correctly, is so that the law can be consistent over time - ie, you do not get two rulings in similar cases which contradict each other. It lends the law an air of permanancy and knowability - ie, if you study past case histories, except in unusual circumstances, you can get a pretty good idea of how the law applies.

This is especially important with a govt that can do all sorts of things and which often contain very ambiguous or contradictory language. In a more proper political system the reliance on precident may not be necessary, but I think thats a very specialized question for legal scholars to bat around more than anything.

I think the first point you mention is a very good one. It is indeed important for the law to be rather permanent. However, when bad decisions are constantly being made (and especially because there are so many different courts with potentially very different ideological concerns) it makes it very easy for the wrong rulings to become entrenched in the legal system... It seems that a lot of times other judges are very hesitant to go against precedents set before, even when a child could see that those rulings are absurd and wrong.

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I believe it's actually a very strong component of how the "common law" developed. That is, the idea of writing new laws, i.e. statutes or "statutory law" the way we think of it today, has a downside in that with the stroke of a pen, very well though out and proven principles can be erradicated. Precedent has a stabilizing effect on this, and is in fact how common law developed.

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The basic point is that when William kicked out the Anglo-Saxons and there developed a centralized legal system with judges, those judges made the law, and the business of writing statutes only came later. This system works only if it's consistent (i.e. it's not idiosyncratic to the specific judge), thus the principle stare decisis developed. This basically follows from the view that law is a code of values which the government will enforce -- the idea "code" implies among other things regularity.

Of course there are lots of problems with the common law approach, which is clearly inferior to an objective statutory approach, and it is the target of this rant by Scalia. Interestingly, though, he actually has no problem with the common law approach to private law, so his objection is to using the common law mindset in interpreting statutory law. It's not clear to me that he actually believes that there is any particular subject matter that "ought to be statutory".

There is a book An Introduction to Legal Reasoning which gives a nice overview of common law precedent setting. The main limit on the arbitrary and subjective power of individual judges is their ability to find "distinguishing properties", if they want a ruling to go contrary to existing precedent. There is a series of cases from Dixon v. Bell up to MacPherson v. Buick which illustrates the degradation of the contractual principle of privity at the hands of social policy concerns by judges, which shows how precedent is highly flexible.

It's actually kind of hard to tell when a precedent is dead versus still active, and for an ordinary citizen, precedent basically makes law unknowable. This is because it literally takes a specialist in the are -- e.g. an IP attorney -- to render an informed judgment as to what you can and cannot do probably. This is because statutory law relates to actual law only very indirectly, in that "the courts will interpret" in ways that you cannot possibly know unless you have a specialized degree.

Bad decisions are made all the time, and bad statutes are being written. For citizens, the problem is that it's often extremely difficult to know what the law actually holds, which is why the best advice is always to hire an attorney, if you want to know whether you are going to be punished for your actions. Obviously that sucks. Decreasing reliance on judge-made decisions is an important step in that direction; the second, possibly as-important, step is some kind of change in drafting practices, one which eliminates uninterpretable laws.

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