Um, isn’t Stare Decisis what keeps Roe V. Wade intact?

It’s probably near that the point where we might think of individual ”cognitive overload.”  But large-scale social changes can lessen these individual struggles.  We’ve come so very far in the last 100 years, and much of that can be attributed to promulgating new attitudes in a wide-scale way rather than to tens of millions of individual cognitive inner battles with ossified principles.  A few billboards, a few headlines, a few television shows and people just might start seeing things in a dramatically new light.  Sometimes, a few widely-promulgated images can convert us without any deep (conscious) analysis of our most cherished principles.  We see people doing things different and, withough much thought, we start doing the same.

Yana warns of using stare decisis to justify the fallacy of ”argumentum ad antiquitatem,” the fallacy of asserting that “something is right or good simply because it’s old, or because that’s the way it’s always been.” I agree.  Unfortunately, in real world courtrooms, crusty old laws give judges some cover for difficult decisions, while fatigue and the need to move the docket do their little siren song duet that too often overwhelms.  In short, stare decisis often amounts to application of the logical fallacy (”argumentum ad antiquitatem).  It’s done by people wearing fancy robes in big rooms with expensive woodwork, so it seems like it must be OK . . .  As Yana also mentions, law is not the only real world situation in which this heuristic/fallacy overwhelms human willingness to do extra hard work–to step back and do double work (first, analyze whether the heuristic should be re-tooled, then apply the re-examined principle to the facts of the situation).  Experience seems to bear out that it’s too much to expect large numbers of people to go against the grain to question their basic traditions.  It’s a lot to ask that all of us, most of the time, to venture out to the Archimedean point–that point where principles themselves (moral, legal or otherwise) become part of the decision-making process. Hence, injustices and superstitions will often continue to find refuge in the arms of unexamined principles. 

One thing I get out of these exchanges is that worthwhile justice and morality do require some effort. If no effort is involved, they are at risk to have been thoughtless and factory-like applications of ossified principles. I guess I’ve just described bigotry . . .

Nietzsche has a lot to say about our need for principles, even those we recognize to be fictions. We have to get through the day, of course. Without our fictions, symbolic animals like us can’t make decisions with any confidence. Therefore, we utter our suspect principles, (sometimes we hold our nose too) and decide.

Is there an accessible ”science” that addresses the extent to which we can/should stop and to dissect cherished principles? I’ll contemplating that.  As Jake suggests, we certainly need to explore this topic more fully.

In US law (and all other legal systems based on the English system), the stare decisis is fundamental. Erich has already explained that this is good because it is applies the law consistently, but can be bad if it is too strictly followed, making the law static. However, although courts will disapply a principle when it seeks to be useful (thus rendering the law not static), this is just a pseudo solution. It is pseudo because it merely shifts the problem to forcing us to ask at what point the precedent should not “be stood by” in favour of the new circumstances. So, my point is that there is always a cost to disbanding old principles due to the demands of a changing society and this cost is the loss of consistency. Granted, it may sometimes nevertheless be necessary, but it is not always clear at point it becomes so.

Of course, this stare decisis idea is not just restricted to law, where it is applied anywhere else it is called plain old conservatism. The philosophical roots of conservatism (by Burke) assume that principles that have stood the test of time must be good ones because they would otherwise not have survived. But surely Burke is assuming that the people or societies that test these principles out are really testing them and challenging them rationally, as opposed to applying them dogmatically. I think this is a major weakness in conservatism because it assumes that people do not blindly apply rules on a argumentum ad antiquitatem basis (as Yana would say), which of course they do. This relates to Erich’s point about bigotry. I think the difference between a bigot and a conservative: the latter follows tradition on the idealistic belief that it has been thoroughly tested, while the bigot follows tradition purely on the basis that it is tradition.

Finally, I would say that I think that this is a really interesting area. I would think of myself as a conservative because I think that there are some principles that are just really good. For example, the idea of dividing up the power within a government into three functional roles is just a fundamentally good idea because it has the benefit of reducing the chance of corruption while few (if any) downsides. I think it was Montisqueau who had the idea of executive, legislature, judiciary sometime before the French revolution, but I’m not sure. Other examples might be having a society that has an effect balance of competition and co-operation among the people that make it up, and the principle of reciprocity (if you help me, then I’ll help you). Although human nature and society may vary in many ways, it also has many aspects that remain constant through time. Therefore, I think that it is no accident that some social organisations always come up trumps, or that we have evolved to behave in certain ways.

In conclusion, I would suggest we all seek to discover what these fundamental principles are, and seek them in a positivist (ie. Scientific) way. If we can all adopt a positivist conservatives about how to organise society, then surely we will have the means for designing society in such a way that it is optimal for the time and context within which it exists.

Moreover, stare decisis is most valid when the earlier precedents it relies on were themselves the result of sound, logical reasoning. It is weakest when earlier precedents show no evidence of rational thought. That’s a big problem for opponents of same-sex marriage. The idea that “marriage is between a man and a woman” has been around for millenia, but it has no obvious foundation in rational thought. To the contrary, it has merely been taken for granted for thousands of years, having apparently originated when the Church appropriating for itself the right to sanctify a human practice that had already been happening for millenia.

In any case, today, in a society with increasingly complex property rights, inheritance rights, parental rights, etc., the notion that same-sex couples should be excluded from the legal status given to opposite-sex couples actually *violates* the principle of stare decisis. If same-sex couples are denied the right to marry, then courts will be faced with a barrage of new cases in which judges will be forced to decide what to do with the unique rights of same-sex couples. How should property rights, inheritance rights, child custody rights, etc. be divided when same-sex couples split up or one (or both) of them dies? If they are married, then stare decisis provides a ready answer to the problem: treat them the same as we would any other married couple. But if they are precluded from being married, then what is the precedent a judge is to follow? If there isn’t any precedent, and there probably won’t be, then the judge will be forced to make up new law to deal with the problem. And where is the stability and predictability in that?

When one is faced with this type of moral dilemma, the best thing to do is to question it from a practical standpoint: “Why was this law or tradition established in the first place, and does this reason still apply today? Are there any practical benefits to following it?” . . . If not, it makes sense to discard it. Even if you’re a Christian trying to interpret the Bible, you should use this same guideline. I mean, think about it: shouldn’t there be a reason for God to establish the laws that He did? Why would God make a law that doesn’t make any sense and only brings misery to certain people? If He established certain laws to, say, encourage or facilitate reproduction in an age when there was a high infant mortality rate and a high death rate in the general population (due to poor medical care, frequent wars, etc.), this law should no longer apply in this day and age, as the population is already getting too large. The problem is that God probably didn’t feel like explaining His reasons for establishing these laws, and if He did, the people wouldn’t take them as seriously. But wouldn’t He want people finally to start using their brains at this age? Come on, you people!

*In the Bible (1 Corinthians 11), the apostle Paul actually states that it is a shame for men to have long hair and for women to have their hair cut off. He also says it is shameful for a woman to pray without a veil on her head and for a man to do so with his head covered. Why? “. . . because [man] is the image and glory of God, but woman is the glory of man.” This Bible passage has caused quite a lot of controversy in the twentieth century with movements such as counterculture and feminism. But does it not indicate that Paul was a product of his culture and time period?