The Problem with Precedence

Judges and jurists are to execute, carry out, or even interpret law. Their rulings are not to be considered law. In subsequent cases, it is inappropriate or even wrong for judges and jurists to give weight to preceding cases.

Understandably, this position is at variance with every school of law in the US. It takes a measure of power away from legal experts. However, it makes sense. If a judge or jurist makes a ruling, it is simple that: his or her ruling. Neither judges nor jurists are legislators. Their rulings are not law but rather their best interpretation at what the law means. Citing them, while commonplace, is irrelevant. In the case of so-and-so vs. so-and-so, so-and-and-so ruled that . . . so what?! Judges' or juries' pronouncements no matter how skilled or lofty they may be, can simply be wrong in there application to the law.

Using judicial precedent as a means of determining law is not only illogical, it is fraught with problems. First, let it be known that judges and jurists are not legislators, and when they act as such two competing legislative bodies are set up. Much of the confusion that is seen in today's judicial system can be traced to the overlapping authority that courts and traditional legislative bodies have.

It creates instability in the public consciousness as to what truly is legal and illegal. "Case law" (in the generic sense of the word) is no substitute for a written code. Due to its nature, case law is often reversed. There exist judicial outcomes that are competing; case law is often self-contradicting. Is action X legal or illegal? Try it and find out.

Precedent based authority (be it binding or persuasive) reserves the right to ignore itself. Sometimes judges reverse precedent. This shows the transient and non-binding nature of using preceding judicial pronouncements as a factor in determining what is legal. Even the word "precede" means "to go before". So, this means someone has to be the first one to take up a certain position - which means he/she did not factor in preceding case law in his/her ruling. If there are divergent legal opinions amongst judges (based on how they ruled), somewhere some judge was the first to say, "I know every judge before me has ruled this way, but I am going the other way." By going against the current judicial opinion, a judge goes against the principle of allowing previous judicial interpretations to influence his decision, and he can create precedent at the same time.

Precedent based authority undermines the idea of law, as the rule of law only applies if people can understand and rely upon the law. If laws are in the "kinda-sorta" realm then it is the whim of judges and jurists that rules this country. If interpretations of the law carry the force of law, then they are law. Courts are meant to carry out the law, not to become it.