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.

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. In fact, there are four of them, and they’re all standing on a stack of turtles. There can’t always have been a developed body of case law. What did the judiciary do in the first case?

Outside the curial chambers of the chancery division, the greatest exponent of the doctrine of precedent is the general counsel who, when brought a novel proposition, will immediately ask, “what did we do last time this happened?”

The doctrine of precedent stands in contradistinction to more realistic theories of life which recognise that since, as a brute fact, the class of things that have not yet happened yet is unlimited and, however compendious the class of “previously encountered things under the sun” may be, it is necessarily finite, and that since an infinite number divided by a finite one is still infinite, then managing risk by only doing what you’ve always done isn’t enormously prudent.

See also

• mediocre lawyer
• general counsel
• The rapture: the point at which the doctrine of precedent at the same time is finally justified and utterly worthless.