We’ve recently raised a few issues regarding justifications for bigotry. What especially rankles some of us is the often-heard argument that people should do something a particular way (recently, the issue is preventing gay marriage) because that is the way that it has been done in the past.
What a ridiculous-sounding principle on which to base an argument! Ridiculous sounding, unless you are a lawyer arguing an important case. In courtrooms across this country, multitudes of lawyers lawyers stand up every day with straight faces and proceed to argue to judges that a case should be decided a particular way solely because a previous and similar case was handled that same way.
In law, this principle that judges should rely on precendent is given the obscure and mysterious-sounding label “stare decisis,” from the Latin, “stand by the thing decided.” [Stare decisis et non quieta movere, meaning “to stand by the decisions and not to disturb settled points”].
There is the great power in this heuristic. At least it’s an equal opportunity principle: Analogizing to old cases is a technique that can be used by crafty opportunists, as well as good-hearted seekers of justice.
Though we are tempted to scoff at this principle (of relying on precedent) when it is employed by bigots, we need to keep things in context. That very same principle is the heartbeat of justice. How strange, you might think, that such an amoral principle determines outcomes of important cases! That’s the way it is, however. I’ll flesh out this principle with some citations from real-life legal cases. Though most of these case are Missouri cases (I practice law in Missouri), similar quotes can be found from cases from every other state and federal jurisdiction.
Where the same issue or an analogous issue was decided in an earlier case, stare decisis provides that prior authority stands as authoritative precedent unless and until it is overruled.” Courts advise that we must be “mindful of the sanctity of stare decisis” [see State v. Grant, 810 S.W.2d 591, 592 (Mo.App. 1991)] and that “Stare decisis is the cornerstone of our legal system.” [M & H Enterprises v. Tri-State Delta Chemicals, Inc., 984 S.W.2d 175 (Mo.App. S.D. 1998)]. Therefore “ . . . stare decisis must prevail “free of reluctance, hesitancy or doubt as to the propriety or fairness of doing so.” [Slagle v. Minich, 523 S.W.2d 160 (Mo.App. 1975)].
According to mainstream legal scholars, doing things the way we’ve always done them leads to needed “stability and predictability in the law.” [421 O’Dell v. School Dist. of Independence, 521 S.W.2d 403 (Mo. 1975)] We must “keep the scales of justice even and steady, and not be liable to waiver with every new case presented.” [Kennedy v. Watts, 125 S.W. 211 (Mo.App. SD 1910)].
But what happens when a morally compelling case like Brown v. Board of Education comes along?For these occasions: The courts have come up a counterpunch: Even though stare decisis “serves exceedingly well in most instances,” we should depart from SD where there are good “reasons” for doing so. [Savannah R-III School Dist. v. Public School Retirement System of Mo., 950 S.W.2d 854 (Mo. 1997)]. After all, “the fact that a rule has long been followed does not require that we continue to follow it, if the reason for the rule has ceased to operate . . .” [Bituminous Cas. Corp. v. Aetna Life and Cas. Co., 599 S.W.2d 516 (Mo.App. E.D. 1980)]. The law should not be “static” and . . . should not blindly follow the rule of stare decisis” [Bituminous Cas. Corp. v. Aetna Life, 599 S.W.2d 516 (Mo.App. E.D. 1980)] Therefore . . . never follow SD where precedent is “clearly erroneous and manifestly wrong.”[ Novak v. Kansas City Transit, Inc., 365 S.W.2d 539 (Mo. Banc 1963)]
Justice William Douglas warned that a judge cannot avoid reexamining precedents “unless he lets men long dead and unaware of the problems of the age in which he lives do his thinking for him.” [Douglas, “Stare decisis” 49 Colum.L.Rev. 735, 736 (1949), as cited by Keith v. Keith, 599 S.W.2d 214, 218 (Mo.App. S.D. 1980)]. Oliver Wendell Holmes found it to be “revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” [The Path of the Law, “10 Harv.L.Rev. 457, 469 (1897)].
After all, “The devil can cite Scripture for his purpose.” [William Shakespeare, The Merchant of Venice, Act I, Sc. iii, L. 95]. It’s hard to think of any other profession where such a “principle” garners any respect. What would you think, for instance, if your surgeon resorted to “precedent” to justify her use of un-sterilized instruments?
In my sardonic moments, I summarize the legal use of precent as follows: Judges should ALWAYS follow precedent, except when they shouldn’t.
We laugh at bigots when they justify their bigotry on the fact that they have been bigoted in the same way in the past. This post, however, is my caveat that thoughtlessly relying on precedent is actually a powerful salve and temptation to frail cognitive animals like human beings (regardless of the purpose for which we are relying on the principle).
Whether it’s because of the availability heuristic, fatigue, runaway emotions or because of our legal system’s stamp of approval on stare decisis, when we start to laugh at bigots’ reliance on precedent, they probably won’t be laughing with us.
While I agree that stare decisis is an important heuristic, it is important not to use it to justify a logical fallacy known as argumentum ad antiquitatem, or "appeal to tradition." Thanks to this fallacy, some cultures and religions still practice wearing traditional clothes, having traditional hairstyles (which is why it was considered immoral for women to have short hair and for men to have long hair*), subjugating women, having a restrictive diet, practicing certain superstitions and nonsensical religious rituals, allowing only certain types of music to be played at church, and enslaving other races. The prohibition of homosexual marriage and fornication also seem to stem from tradition and can be considered anachronistic.
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?
Erich makes an excellent point about the social stability and legal predictability that stare decisis can provide. Nevertheless, I've never been a big fan of it, because far to often it has been a tactic used by those in power (who, of course, rode to power on the shoulders of yesterday's social and legal norms) to subjugate those without power. In other words, it has been a tool used by autocrats, bureaucrats and theocrats to prevent the rise of meritocrats, and that can have its own significant social costs.
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?
If you one recognises the fact that (as Erich has done already) that the stare decisis principle is merely a heuristic, then surely it should be praised and recognised as a vitally important way for people to make decisions.
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.
As Jake and Yana point out, the point at which we should re-examine precedent is really a fascinating topic, and it's not limited to the legal field. Clearly, neither extreme works. You CAN'T always re-examine the principles on which we base our actions (there's not enough time in the day) and you can't never re-examine your guiding principles (you'll cause too much wreckage along the way–even the best honed principles don't wrap themselves around the things of the world, at least not with any sensitivity). So where in this continuum are these things we call "justice" or "morality," for instance?
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.
On reading "We must always do X, etc":
Um, isn't Stare Decisis what keeps Roe V. Wade intact?
On the topic of stare decisis, I recently published an article for the Bar Association of Metropolitan St. Louis on the topic: “The Exaggerated Importance of Stare Decisis.” “SD,” as I refer to it throughout the article, “works” on simple cases. On cases with complex issues, SD does not compel particular outcomes, yet we pretend that it does for fascinating psychological and jurisprudential reasons. https://dangerousintersection.org/wp-content/uploads/2020/04/2019.09.27-Exaggerated-Importance-of-Stare-Decisis-SLBJ.pdf