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, never mind the fact that there are four of them, and all perched on top 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 law we know was buried in the marble, and those qualified to opine on it could do nothing more than walk around this great block, with a chisel, scrating their chins. What did the judiciary do in the first case?

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

The doctrine of precedent stands in contradistinction to realistic, pragmatic theories of existence 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.

And there’s not much to be said for closing your stable door once your horse has bolted.

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.