Doctrine of precedent

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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 whose behavioural response to any new idea is, “but what is wrong with how we have done it until now?”

Thus we find old saws, aphorisms, catechisms; refrains; rules of thumb by which young attorneys can ply their trade and pass each other’s time: “... in the absence of such party’s gross negligence, fraud or wilful default”; in Party A’s “sole and absolute discretion”; “notwithstanding anything to the contrary in the foregoing contained” — these will work in any circumstance, will gladden one’s heart and make it clear to all nearby that you, young attorney, have made a difference.

A golden thread running though the web of English law

By common foundational myth, this is how the common law became the many-faceted thing of 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 must, once, have been 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 back the reply, “we’ve never had this problem before, boss”, expect quick diffusion of responsibility through an escalation circle: at this chicanery there is no is defter exponent. You don’t get to be GC by rolling the dice on your own backside. Indeed, if you’re talking to the GC already, chances 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 contrast 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 any finite number is still infinity, managing unknowable risk by doing only what you’ve always done isn’t prudent.

And nor is there much to be said for closing your stable door once your horse has bolted, either. Even if it has just smacked you on the backside.

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.