Stop Emphasizing Precedent

Rule of law is only meaningful if guided by principle. Determining the truth of this requires reflection that simply glorifying legal precedent makes impossible.

The Western world has largely left the age of dynasty behind. No more is government a vehicle for personal laud and fortune; virtue, in its function as a barometer of efficacious law, takes its meaning from something more empiric than the whim of an empowered potentate.

But overwhelmingly beneficious as this has been for the health of the body politic on the whole, the liberalizing of government institutions is not without adownside. And this is the necessary introduction of stability into the foundation of democratic government.

Whereas the divinity of a king’s mandate to rule has a durability that is unassailable, rooted as it is in the eternal authority of an entity whose otherworldliness literally cannot be challenged, democratic rulers answer to a more localized and far more mercurial power: the citizenry. Unlike their monarchical counterparts, the nature of democratic power does not create any degree of separation between ruler and ruled. Authority does not insulate officials from the judgment of the people but enslaves them to it. Any reason, no matter how facile or inaccurate, may serve as a catalyst turning public sentiment against an official. Couple this with term limits, and there is very little of certainty in the long-term power dynamics of countries that embrace democratic elements.

Enter Thomas Jefferson’s dichotomy of a “peaceful tyranny” versus a “dangerous freedom.” Freedom in the abstract sounds very good indeed, as it turns the concept of sovereignty upon its head, making it, rather than an external agent whose authority is a limitation upon the individual, an integral part of an individual’s internal being. It becomes the responsibility of man to employ his reason in making determinations about right and wrong and marry this consciousness to the pursuit of the goals which it is his right to define and pursue for himself.

But there is no certainty in this kind of freedom. Each man is his own maker; success is not guaranteed. There is conflict between the anarchic environment of a free society and the most fundamental of human drives, which is the desire for self-preservation. Stability — particularly political stability — comes from a known entity and from a regimented process of documented success. Theoretical objections to handouts from the state abound, but what do abstract theories of ownership mean to the person who cannot feed their family?

The lack of stability in democratic governments derives from the incorporation of public will into government behavior. This necessitates radical upheaval in the highest offices, potentially reversing the direction of federal policy. Such uncertainty runs at cross-purposes to the most fundamental of human drives: survival, which is tied to stability.

This is one reason the United States is not a procedural democracy. In its purest form, democracy is a numbers game; morality is by default whatever the largest faction determines it to be. There are no guarantees that the rights of dissenting and minority groups will be respected. Nor is there any guarantee that the mutable mind of man will not work in such a way as to cause members of today’s majority to fall away tomorrow, creating a new preeminent faction, with new ways of thinking.

Hence the importance of rule of law, drawing its authority from a document that is obdurate and, though changeable, not easily altered, particularly for light and transient reasons. Rule of law is the rigid backbone that separates America’s representative democracy from the invertebrate creature that is pure, procedural democracy. The Constitution — the guidepost for rule of law — is built on certain bedrock principles: equal treatment for individuals under the law and federal restraint that respects the sovereign decisions of states to make internal policies among them. But rule of law is a process, which must be separated from the principles that act as a conduit for government behavior. No principle enshrined in the Constitution is unalterable.

Rule of law, of late, has been conflated with precedent, this latter concept being the rallying cry of a certain set of the population who like to portray every change in the status quo as some world-upending existential threat. Those who emphasize precedent seem to operate under the belief that a law, once established, must exist — in exactly the same form as at its passage — in perpetuity.

But this is a view that looks entirely at process, not at the operative principles upon which the passing of a law was based. For example, equal treatment under the law is a fairly useless concept by itself. It could easily be interpreted to mean that all people of the same race or gender must be treated the same under the law. That, after all is “fair.” Yet, as the shameful precedent set by the Plessy v. Ferguson ruling that “separate but equal” meets Constitutional muster demonstrates, this can be used for discriminatory purposes. Equality under the law is only an aid of justice if it is tied to bedrock principle: the idea that, by nature of his sovereign being, each individual is entitled to the same treatment as all others who commit a similar crime. Ephemeral concerns, such as the distinguishing characteristics of a person’s physiognomy, have no substantive bearing upon the matters which the judiciary probes and therefore ought to have no place in the forming of a judgment.

Rule of law must operate in conjunction with something of substance. After all, law-making itself is only a process. And process by itself means nothing. It is hollow; it needs some core animating will. It is the difference between the autonomic and central nervous system. The latter operates on impetus, but there is no discretion or intuitive purpose to any of its functions. Those require a conscious process of synthesis that is ends-driven. Government action by itself is meaningless; there must be some goal around which the crafting of policy is oriented. And, dangerous as this can be, this requires the discretionary process of the minds of men. This is why principle is important. Political figures empowered to make discretionary judgments often fuse their will with the organs of government power, which means policy is oriented around their will, driven itself most fundamentally by a need to survive, not by any empiric principle.

A dictatorship is the most stable form of government, yet survival is nowhere so in flux, because one holds one’s life on the terms of the mutable will of another, the fluctuating conditions which affect its conclusions cannot be predicted. A government that conflates rule of law with precedent, emphasizing stability of conditions rather than looking to the validity of the ideas that are employed to achieve those conditions, is effectively a dictatorship. It does not respond to reason, but sheer force of will. Authority becomes a law unto itself. One cannot question it without contravening it. Giving deference to precedent as some sacred entity that cannot even be questioned, let alone altered, is contrary to the principles of democratic government. Law is no longer a tool to be employed for the betterment of the people but dictates the terms of their betterment to them.

Law in America is alterable because of the plurality of viewpoints and because the Founders understood that changing conditions would make new information available to the people. Both of these factors would lead to fluctuation in conclusions to public arguments over in what particular direction public policy ought to aim. Yes, rule of law exists to provide durability to government, a feature that is conducive towards survival, on the individual and national level. But adaptability is also an integral component to survival. Creatures who fail to perceive the changing nature of the environment in which they live are doomed to be overtaken. The same principle holds true to politics. Debate cannot by stymied by misplaced loyalty to precedent; rational, principle-driven discourse about law must be the center of government considerations.



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Katherine Emily

Founder, The Subversive Scrivener. Writer. Thinker. Intransigent ideologue. Radical individualist. Talent fully developed is the highest moral good.