Doctrine of precedent

A world-view that underpins everything the common punctilious attorney 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.

Stare decisis: literally, “that which has been decided shall stand”.

There is a persistent strain of inhouse lawyer — from the GC down — whose behavioural response to any new idea is, “but what is wrong with how we have done it until now?” There are catechisms; refrains; rules of thumb by which young attorneys can ply their trade and pass other’s time: “... in the absence of such party’s gross negligence, fraud or willful default”; in Party A’s “sole and absolute discretion” which will work in any circumstance, will gladden one’s heart and let it be clear that your young man has made a difference.

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 famously articulated principle of common law — the whole edifice 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.

For what precedent did the judiciary cite as authority for the very first case? (“You're very clever, young man, very clever,” said the old lady, “but it’s precedent all the way down.”)

Outside the great curial chambers of the Chancery Division, the greatest exponent of the doctrine of precedent is the general counsel. When brought a novel conundrum the GC will immediately ask, “what have we done before?” If comes the answer, “we’ve never had this problem before, boss”, expect quick diffusion of responsibility through the circle of escalation. If you're talking to the GC already, chanced are the wheel has already half-way turned. Watch out for when it smacks you on the backside.

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.