Doctrine of precedent

A world-view that underpins everything the common lawyer holds dear: that, as far as makes any difference, there is nothing new under the sun, and if anything transpires to be, one should keep well clear of it.

A golden thread running though the web of English law

By common myth, this is how the common law became the thing of many-faceted beauty we know today. No-one mentions the elephant in the room, never mind the fact that there are four of them, and all perched atop of a stack of turtles. You see, there can’t always have been a developed body of case law: at some point in its life, every maxim; every golden stream running through its sunlit uplands; every principle of common law was buried deep in a great marble block, and those qualified to opine on it could do no more than walk around it, with a chisel, scratching their chins.

What precedent did the judiciary cite as authority for the very first case?

Outside the great curial chambers of the Chancery Division, the greatest exponent of the doctrine of precedent is one’s own general counsel who, when brought a novel conundrum, will immediately ask, “what have we done before?”

On whether there is anything new under the sun

The doctrine of precedent stands in contradistinction to realistic, pragmatic theories of knowledge which recognise that since, as a brute fact, the class of “things that have not yet happened yet” is — to the best of anyone’s knowledge — unlimited and, however compendious it may be, the class of “things that have already happened” may be, it is necessarily finite. Since infinity divided by a finite number is still infinity, managing unknowable risk by doing only what you’ve always done isn’t enormously prudent.

And nor is there much to be said for closing your stable door once your horse has bolted, either.

See also

• policy, also known as “organisational scar tissue”;
• mediocre lawyer
• general counsel
• The rapture: the point at which the doctrine of precedent at the same time is finally justified and utterly worthless.