Stare Decisis: The Maker of Customs Samuel C. Damren* I. INTRODUCTION The decision of the United States Supreme Court in Dickerson v. United States1 places the principles of stare decisis in bold relief. Based on their prior opinions, a majority of the justices in Dickerson would never have approved the original Miranda decision had that case come before them as a matter of first impression. Thirty-four years later, however, in a sevento-two decision, the Supreme Court affirmed Miranda. It did so because Miranda had “become a part of our national culture.” Whether or not we would agree with Miranda’s reasoning and its resulting rules, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. . . . While ‘stare decisis is not an inexorable command’ . . . particularly when we are interpreting the Constitution . . . ‘even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some ‘special justification.’’ . . . We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.2 The Dickerson decision requires an assessment of stare decisis’ role that is not limited to the parochial aspects of legal process. The application of stare decisis involves questions of historical, political, cultural, and philosophical import. It is the intent of this article to lend some coherence to what Justice Scalia, in his pointed dissent in Dickerson, asserted was the “lesser evil” of “incoherence”3 that was being advanced by the Dickerson majority. Stare decisis is the rule of English common law that requires judges to “stand by” their previous “decisions.” While phrased in Latin, stare decisis “was not definitely enunciated” as a principle in English law until the nineteenth century.4 However, the gestation of stare decisis began in the thir- * Copyright © Samuel C. Damren, 2000. Director, Miro Weiner & Kramer, a professional corporation, 38500 Woodward Avenue, Suite 100, Bloomfield Hills, Michigan 48034. 1. 120 S. Ct. 2326 (2000). 2. Id. at 2336. 3. See id. at 2339. 4. Hon. Walter E. Treanor, Remarks at Conference on the Rule of Judicial Precedent, 14 U. CIN. L. REV. 218, 223 (1996); RUPERT CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW 25 (Clarendon Press, Oxford 1991). 1 2 NEW ENGLAND LAW REVIEW [Vol. 35:1 teenth century. Prior to this period and for long after, its development was limited by royal fiat: “[I]f you could appeal to legal principle what you would say would be well enough, but against the King, who is above the law, you cannot rely on legal principle.”5 Even with the gradual removal of this limitation, the application of stare decisis as a legal principle was not possible without a reliable and objective system for reporting judicial opinions.6 This did not occur in English law until the advent of the Year Books in the late 1200s.7 Before the Year Books, legal principles established by case law “usually took the form of an appeal to memory”8 of judges and barristers. While some cases reported in these earlier periods were memorialized, the reliability and objectivity of the reports was highly suspect.9 From this perspective, the Year Books represented the “crude beginnings of law reporting.”10 The decisions of English judges reported in the Year Books were initially regarded as “only evidence” of the law instead of binding precedent.11 Toward the end of the sixteenth century, given an ever increasing body of case law within which to root, this limitation also began to erode.12 The system of binding precedent that is the hallmark of the modern English and American judicial systems came to full flower during the late eighteenth century and early nineteenth century.13 The tension between stare decisis’ inexorable tether to the past and the ever-changing future landscape has been the subject of innumerable commentaries. Nevertheless, whether one finds resonance in Oliver Wendell Holmes’ caustic assertion that: [I]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past[,] 14 or the venerate intonations of Yale law professor Anthony Kronman’s homage to traditionalism: 5. T. Ellis Lewis, The History of Judicial Precedent, XLVI, LAW Q. REV., 215-24, 326-60, 355 (1930) (citing Y.B. 8 Edw. 2, S.S. 74 (1315)) (emphasis added). 6. See James B. White, What’s An Opinion For?, 62 U. CHI. L. REV. 1363, 1366 (1995). 7. See Lewis, supra note 5, at 216. 8. Id. at 341. 9. See id. at 216. 10. Id. 11. See JAMES RAM, THE SCIENCE OF LEGAL JUDGMENT 47 (Fred B. Rothman & Co. 1988). 12. See Lewis, supra note 5, at 344. 13. See XIII SIR WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 157 (A.L. Goodhart & H.G. Hanbury eds., Methuen & Co. Ltd. 1956); see also E.M. Wise, The Doctrine of Stare Decisis, 21 WAYNE L. REV. 1043, 1048 (1975). 14. Oliver Wendell Holmes Jr., The Path of the Law, in COLLECTED LEGAL PAPERS 167, 187 (1920). 2000] STARE DECISIS 3 [I]f we have any grounds for believing that the future will honor what we do, it can therefore only be the uncompelled honor we show the past. The partnership among the generations . . . thus depends for the attainment of its ends on each generation’s treating the achievements of its predecessors as something inherently worthy of respect. It is only on that condition - on the basis of a traditionalism which honors the past for its own sake - that the world of culture can be sustained[,]15 the tension between past and present defines the accepted problemique of stare decisis. From this accepted perspective, stare decisis requires the judiciary to decide cases as if from the deck of a moving vessel16 rather than from the floor of an immobile courthouse. Proponents of change, such as Holmes, find themselves frustrated by the degree to which the inertia of past decisions can inhibit present day shifts in course. Proponents of traditionalism, like Kronman, fear that without sufficient inertia from the past to guide our present-day decision-making, abrupt shifts in course caused by the strong, but ephemeral gusts of social, political, or economic change could founder society’s judicial affairs. Commentators proceeding from this perspective focus on striking a balance between various components to these competing interests in order to explain and isolate the so-called rules of precedent.17 It is the thesis of this article that the accepted problemique of traditionalism masks the more fundamental roles that stare decisis plays, first, in the “individualization” of law to fit particular circumstances, and second, in the common law judiciaries’ relationship to, and competition with, other institutions for societal power. II. THE FUNDAMENTAL ROLES OF STARE DECISIS Despite trappings of robes, marble, bailiffs, clerks, wigs, and other accoutrements of power, in its relationship to, and competition with, other sources of societal authority, the judiciaries’ position as an independent source of societal power rests upon an inconsistency. This inconsistency is 15. Anthony T. Kronman, Precedent and Tradition, 99 YALE L.J. 946, 1068 (1990). 16. See, e.g., Christopher J. Peters, Foolish Consistency: On Equality, Integrity and Justice in Stare Decisis, 105 YALE L.J. 2031, 2081 n.185 (1996). 17. See ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY (Harold Dextor Hazeltine, LITT. D. ed., Wm. W. Gaunt & Sons, Inc. 1986) (1923); see also PRECEDENT IN LAW (Laurence Goldstein ed., Clarendon Press, Oxford 1987); RUPERT CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW (C. Goldstein ed., Clarendon Press, Oxford, 1991); David Luban, Legal Traditionalism, 43 STAN. L. REV. 1035 (1991); Gerald J. Postema, Moral Presence, 36 MCGILL L.J. 1153 (1991); Deborah Hellman, The Importance of Appearing Principled, 37 ARIZ. L. REV. 1106 (1995); SAUL BRENNER & HAROLD J. SPAETH, STARE INDECISIS (Cambridge Univ. Press, 1995). 4 NEW ENGLAND LAW REVIEW [Vol. 35:1 created by the fundamental edicts of the legal order that “law is not the rule of men”18 and that “legal authority never depends upon the individual who happens to occupy an office.”19 Together, these edicts form a dilemma: how do judges, who are not above the law, but are nevertheless charged with enforcing it, do so without becoming or appearing to become, equivalent to the law? As a side step to this dilemma, the judiciary generally notes that while courts enforce the law, law itself is established by sources of authority that are external to the judiciary. For example, courts enforce (i) statutes and constitutional provisions that legislative bodies enact, (ii) contracts that private parties create, and (iii) the established precedent of the common law. Although this latter source of authority is originally internal to the judiciary, through the elixir of time, the principle of stare decisis neatly converts the past decisions of the judiciary into a seemingly immutable source of external authority for present-day courts. In addition, since only judges can decide whether, and to what extent, the judiciaries’ past decisions bind present-day judicial decision-making, the judiciaries’ access to this external source of authority is exclusive. As a result, the principle of stare decisis functions in common law systems not only as a self-renewing source of legitimacy for the court’s authority, but also as a mechanism to cede a prominent position in the allocation of economic, social, and political power among societal institutions to the judiciary itself. While one may indulge in unending scholarly debate as to whether the forces of traditionalism that are embodied in the principle of stare decisis constitute a “ball and chain” or a “boon” to the development of the law, these discussions are incidental to the real work that the mechanism of stare decisis performs in common law legal systems. The historical circumstances that enabled the common law judiciary, through the enunciation of stare decisis, to annex a broad range of economic, social, and political power to itself, together with stare decisis’ origins in canon law, are discussed in Part V of this article. The task of retracing the concept of stare decisis through the labyrinth of political, philosophical, and anthropological works that touch on the subject of traditionalism and its relationship to social order is undertaken in Parts III and IV. This latter review is a necessary foundation for the analysis of stare decisis’ role as a tool to “individualize” and “guide” justice that is set forth in the Conclusion of this article. 18. PAUL W. KAHN, THE CULTURAL STUDY OF LAW 67 (1999). 19. HOLDSWORTH, supra note 13, at 79. 2000] STARE DECISIS 5 III. THE ILLUSIONARY NATURE OF THE SO-CALLED RULES OF PRECEDENT AND LLEWELLYN’S “ORDER OF THE ENTIRETY” To best explicate this proposed new perspective on stare decisis, it is appropriate to examine the so-called rules of precedent through the eyes of one of its foremost critics: American law professor Karl Llewellyn. Llewellyn was a charter member of the Legal Realists and a strong advocate of Rule Skepticism. Rule Skeptics assert that “extra-legal”20 grounds, not reflected in so-called rules of precedent, are the primary forces behind the present day decisions of courts.21 In The Case Law System in America,22 first published in German in 193323 and not translated into English until 1989, Llewellyn disparaged the so-called “rules of precedent:” [T]here is no uniform doctrine for how precedents are actually handled. Rather, on every point there are at least two opposite tendencies: the legal reasoning employed will deem one “correct” and the other “incorrect” as the case at hand may require. Each approach is then quite capable of doing a 180 degree turn when the very same court comes to deal with the selfsame precedent in deciding the very next case on its docket. 24 Rule Skeptics regard the “rules” of precedent as having little predictive value,25 and as constituting merely an “illusion” of the real process under- 20. WILFRID E. RUMBLE, JR., AMERICAN LEGAL REALISM, 78 (1968). 21. In Llewellyn’s own remarks at a Conference sponsored by the University of Cincinnati on precedent, he selected a series of appellate decisions issued on one day from the New York Court of Appeals on July 11, 1939 and then used them as illustrations of how the “use of precedents” was differently applied, expanded, contracted, and ignored by the court in reaching these decisions: I could go on showing at length how in the cases of July 11 they either extend, for example, I have in this batch of cases decided on one day, six instances in which they decide freely with no precedent cited and no precedent demanded, they just lay out a point and decide it like that - make precedent, following none at all. I have in the same batch of cases, decided on the same day, three instances in which they say: “No authority is adduced which would jus tify deciding the point urged by counsel.” What are you going to do? Are you going to tell me that the court is limited by the precedents when I have on one day six rulings on new points, without use of precedent? Are you going to tell me that the court is free to move without reference to precedents, when I have on the same day three cases where they explicitly say: “Show us where the precedent is, or we can’t go with you?” It would be nonsense to take either position. Karl N. Llewellyn, The Status of the Rule of Judicial Precedent, 14 U. CIN. L. REV. 203, 216 (1940). 22. KARL LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA 50-51 (Paul Gewirtz ed., Michael Ansaldi trans., 1989). 23. Llewellyn studied in Germany as a student and, in fact, remained in Germany during the First World War. He later taught at various German Universities. LLEWELLYN, supra note 22, at 50-51. 24. Id. at 50-51. 25 See Wise, supra note 13, at 1051. Citing THE COMMON TRADITION, E.W. Wise notes that Llewellyn “gives a list, admittedly incomplete, of some sixty-four tech- 6 NEW ENGLAND LAW REVIEW [Vol. 35:1 lying the workings of the legal order.26 Llewellyn’s rejection of the “rules of precedent” did not, however, include a repudiation of the accepted problematique of stare decisis. To the contrary, Llewellyn’s commentaries and writings indicate that while he very much agreed with the accepted problematique of traditionalism, he believed that a different explanation of the underlying tensions involved in the development of law was required. In The Cheyenne Way, written by Llewellyn and anthropologist E. Adamson Hoebel, Llewellyn and Hoebel expanded the concept of the legal order to include the societal weave of primitive culture.27 As an unstated subtext, the purported Cheyenne legal order is treated by the authors both as a laboratory subject to dramatize Llewellyn’s Legal Realist perspectives and as an introduction for their proposed model of the “Order of the Entirety” to explain the “extra-legal” grounds which underlie the illusory rules of precedent. Llewellyn was extremely invested in the formulations that he and Hoebel introduced in The Cheyenne Way to describe the true workings of the legal order. In contemporaneous articles, Llewellyn not only refined, but greatly expanded, these formulations to include a number of other novel terms: “skelegal,” “jurid,” “law-wavers,” “legaloid,” “recognized going order,” “official-legal,” “channeling,” “arranging the say,” and “Net Drive.”28 Despite his obvious commitment to this subject, no one has continued Llewellyn’s work, much less adopted the novel conceptual tags that he devised to explain the underlying workings of the legal order. There are good reasons for this inattention. The ultimate failure of Llewellyn’s and Hoebel’s construct of the Order of the Entirety as an explanation of the underlying processes of the legal order does not, however, diminish the force of Llewellyn’s criticisms of the failings of the so-called rules of precedent to serve as a workable construct of those same processes. Llewellyn’s and Hoebel’s failure was not the result of lack of ability or dedication. Llewellyn, after all, was the prime architect of the Uniform Commercial Code,29 a time-tested construct of admirable insight and care. He also possessed a first rate intellectual niques for handling precedent, illustrated by reference to decided American cases: eight ways to follow but constrict a precedent, eight to stand by it, thirty-two to expand it, twelve ways to avoid it and four to kill it.” Id. 26. KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 61 (1962). 27. KARL LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY (1941). 28. Karl Llewellyn, The Normative, The Legal, and The Law-Jobs: The Problem of Juristic Method, 49 YALE L.J., 1355, 1365-91 (1940). 29. See, e.g., Grant Gilmore, In Memoriam: Karl Llewellyn, 71 YALE L.J. 813 (1962); see also William A. Schnader, A Short History of the Preparation and Enactment of the Uniform Commercial Code, 22 U. MIAMI L. REV. 1 (1967); Richard Danzig, A Comment on the Jurisprudence of the Uniform Commercial Code, 27 STAN. L. REV. 621 (1975); Symposium, Origins and Evolution: Drafters Reflect Upon the Uniform Commercial Code, 43 OHIO ST. L.J. 535 (1982). 2000] STARE DECISIS 7 creativity so obvious and evident that Cheyenne, who met him, regarded him as a “medicine man” who “stands and shakes himself so that all that brilliant stuff showers off him like snow.”30 If ever there was a legal scholar well set to best the challenge posed by the illusionary rules of stare decisis and to better describe the actual workings of the underlying legal order, it was Karl Llewellyn. Nevertheless, within the failings of Llewellyn’s construct of the Order of the Entirety lie a path to correctly re-orient the accepted problematique of stare decisis. The formulation of the law’s relationship to society contained in The Cheyenne Way is abstract in the extreme. Llewellyn and Hoebel begin by postulating a “Whole,”31 a functional society, that is subject to “the divergent urges or desires”32 of its individual members. These drives manifest themselves in the form of “Claims”33 of members against one another. Hoebel and Llewellyn equate the process by which Claims are resolved as the legal order. The authors then introduce two additional concepts to describe the “dynamics which generate a legal order.”34 The first concept is that of Drift, “Drift is the relatively impersonal and unnoticed lumping of behavior into belts around semi-lines which come to interlock, together with the further relatively impersonal and unnoticed shifting of the ‘centers’ of such belts.”35 The second concept is Drive, “Drive, on the other hand, is individuated and personal. Moreover, it takes on of necessity a conscious aspect in things legal, if and whenever it meets with challenge.”36 In their system, Llewellyn and Hoebel assert that the interaction of societal Drift and individual Drive through the bringing of Claims creates the necessity for legal process, and that the resolution of Claims through that process produces the Order of the Entirety.37 The interaction of Drift and Drive also gives birth to what Hoebel and Llewellyn term the “primitive sense of justice,”38 which requires “no organ to build or create it,”39 and exists independently of the cultural state of any particular society. It is a “primitivity . . . which continues into, and continues to effect, the most elaborate and sophisticated culture.”40 Following up on Holmes’ observation that “[t]he wisest jurists and the most skillful . . . can still feel the ground of a decision as he cannot state it,”41 Hoebel and 30 N.E.H. HULL, ROSCOE POUND AND KARL LLEWELLYN 288 (1997) (citing E. Adamson Hoebel’s letter to Llewellyn, Nov. 2, 1935). 31. LLEWELLYN & HOEBEL, supra note 27, at 274. 32. Id. 33. Id. at 294. 34. Id. at 278. 35. Id. 36. Id. 37. See LLEWELLYN & HOEBEL, supra note 27, at 274-78. 38. Id. at 281. 39. Id. 40. Id. 41. Id. at 311. 8 NEW ENGLAND LAW REVIEW [Vol. 35:1 Llewellyn conclude that this “feeling” corresponds to the societal Drift that can be brought to the surface by the occurrence of a Claim. Llewellyn and Hoebel also isolate two additional attributes of the legal order: Regularity and Authority. In their view, law is distinguished from moral pressure by its use of physical sanction. The use of physical sanction is not, however, a simple matter of “fang and claw.”42 Instead, it is “part of the going order” of society,43 which attains “officialdom” or “authority” by being “commanded as if for, and on behalf of, the Whole.”44 The authors assert that authority alone, however, cannot constitute a functioning legal order: Legal philosophers who describe regimes which they call “despotism” or “tyranny” tend to forget or under stress that to continue as a group at all, the people of the group require some regularity of conduct. And they tend to under stress especially that a despot, with the worst will in the world, can still be despotic and arbitrary only while he can stay awake. 45 While Llewellyn and Hoebel acknowledge that a legal order cannot function without “some regularity of conduct,” they also contend that too great an adherence to past practices stifles the realization of the Drift in the Order of the Entirety and can produce an arbitrariness equivalent to that of an awakened despot: When the regularity elements in a legal system not only gain the upper hand, but get out of hand, there results the wooden, externalized, graceless, and cumbersome mal-adaptation which is summed up as legalism. Legalism is marked by unsatisfactory results, by wooden arbitrariness, as compared to the tyrant’s arbitrariness of whimsy or temper. 46 In the ensuing contest between Authority and Regularity, Llewellyn and Hoebel assert that the goal of “law stuff’s business is to hold in balance” society’s “drives and tensions.”47 In the final chapter of The Cheyenne Way, the authors contrast the American and German legal systems with the Cheyenne legal order. The authors begin by characterizing the American system as “judge-centered,” “groping,” and tending to produce “lagging judgments:” Reinforcing the importance of adjudication as the essential crucible of law, despite the wealth and welter of the statutes, is the absence of the systematic-theoretical in our general culture, with its muddle-through, “Is it practical?” get-down-to-cases flavor. There is the looseness and vagueness of our theorizing, our willingness to be precise of phrase and definition, and our greater unwillingness to follow the logic of an “ac- 42. 43. 44. 45. 46. 47. Id. at 284. LLEWELLYN & HOEBEL, supra note 27, at 284. Id. Id. at 285. Id. at 288. Id. at 327. 2000] STARE DECISIS 9 cepted” premise through boldly to an unacceptable conclusion. All of this means a way of juristic thought and concept which, despite written records, despite conscious building of traditional wisdom and technique across the centuries, still works well-nigh as much by intuition as by rational construct and rational development thereof.48 In contrast to the American system, the authors assert that the “center” of the German legal order is the “systematic scholar, and after him ‘the legislator’ who has cast authoritative law into rigid command and limitation:”49 And from the surrounding culture came reinforcement from the curious German urge to follow through the logic of a premise the more tenaciously, the more outrageous the conclusion might appear to be. . . . As a way of juristic operation, it was conscious, intellectual, systematically organized, and articulate, to a degree almost outside the American legal imagination. Its error lay in attempting too definite and too rationalized a control upon a life that was not a single piece and would not stay so if it had been.50 Llewellyn and Hoebel conclude that the German approach overemphasizes the Regularity function through “rigorous articulation.”51 Despite their criticisms of the American system, from Hoebel’s and Llewellyn’s perspectives, the judge-centered legal systems of America and Rome, with Holmes’ “wisest jurist” occupying a leading role, would appear best able to produce a healthy and well-ordered “Order of the Entirety.” In actuality, however, the authors note that such systems suffer from human frailty, stating that “[p]erhaps the legal life of Rome was in fact as full of third-raters who were as frequently muddled and many-minded in their legal intuitions as any double hundred of American judges whom you can pick at random out of this year’s Who’s Who.”52 It is a limitation that is further compounded in modern America “because the complexities of whirlwind industrial changes have outrun the capacities of such intuitive operation in the hands of any but the great [judges].”53 When the authors return their focus to the Cheyenne legal order, however, they “meet a curious phenomena:” It is not merely that we find neat juristic work. It is that the generality of the Cheyennes, not alone the ‘lawyers’ or the ‘great lawyers’ among them (whom they show no signs of having recognized as such) worked out their nice cases with an intuitive juristic precision which among us marks a judge as good; that the generality among them produced indeed a large percentage of work on a level of which our rarer and greater jurists 48. 49. 50. 51. 52. 53. Id. at 310-11. LLEWELLYN & HOEBEL, supra note 27, at 312. Id. Id. at 311. Id. at 312. Id. at 311. 10 NEW ENGLAND LAW REVIEW [Vol. 35:1 could be proud. This is the more notable because explicit law, i.e., law clothed in rules, was exceedingly rare among them. It is the more notable because they did not have many fixed rituals of procedure to guide them, around whose application or whose ceremonial formulae and behavior, concepts of legal correctness so readily come to cluster. 54 From Llewellyn and Hoebel’s perspective, the virtues of the Cheyenne legal order are self-evident; the Cheyenne legal order is not blindly bound to the past nor is it falsely led through either “groping” decisions or “rigorous articulation” to judgments that inadequately reflect societal Drift.55 The authors do fault the Cheyenne legal process for its lack of Regularity and for being less accessible than it should be, thereby, permitting “minor trouble-festers to a head” and the continuation of “smouldering irritations,”56 but these are minor faults that the authors believe could be cured by more active legal intervention. What Llewellyn and Hoebel assert that they found in the Cheyenne legal order was a highly effective system of “law stuff” that does not rest upon either illusionary rules of precedent or an overly “rigorous articulation.” Unfortunately, as the authors lament: It cannot of course be asserted that the Cheyennes could have maintained their juristic sureness and malleability in the teeth of a regime of accumulating written records, or in the teeth of the development of a class of specialized law-men whose trade skills might tend to drown out the common sensitivity, or in the teeth of complex economic development. . . . At least it is easy to see that the more complex and specialized the underlying institutions come to be, and the less clearly they are integrated to respond bell-like to the tongue of justice-in-controversy and of wisdom, the greater and more unique the calibre [sic] of man required to do Cheyenne-like work under the cross-thrust of the case, the given “law” materials, and the future.57 Thus, Llewellyn and Hoebel close The Cheyenne Way with the tragic observation that “Cheyenne law leaped to its glory as it set.”58 From an anthropological standpoint, Llewellyn’s and Hoebel’s view of the so-called Cheyenne legal order is little more than a personalized form of ethnocentrism. What they both failed to appreciate in their expansion of the so-called legal order to include Cheyenne culture is the fundamental differences between primitive culture and state-based society. According to anthropologists Robert Redfield and Stanley Diamond, the fulcrum of primitive society is the relationship between and among kinship groups; whereas, the fulcrum of state-based society is the relationship between the 54. 55. 56. 57. 58. Id. at 312-13. See LLEWELLYN & HOEBEL, supra note 27, at 312-13. Id. at 339. LLEWELLYN & HOEBEL, supra note 27, at 333-34. Id. at 340. 2000] STARE DECISIS 11 individual and the state.59 Primitive culture is based on the maintenance of an often delicate balance between and among kin groups. Where the acts of an individual kinsman create an imbalance in this relationship, the underlying goal of socalled “conflict resolution” in primitive culture is to restore the established balance. In primitive society, the question of whether or not an individual is breaking a so-called “rule” depends on the state of the balance among kin groups at the time of the particular act and whether or not the particular act interferes with, maintains, or restores that balance. As a result, the “wrongs” and “remedies” of primitive culture are always situationspecific. For this reason, in the primitive world, individual transgressions are not truly “punished;” instead, balance is restored by the performance of some act, often by the transgressor, but alternatively by his kinsmen.60 It is for this reason that so-called “wrongdoers” in primitive society appear to “accept” their punishment, or as Redfield’s Indian informants told him, “in the old times there was no law; everybody did what was right.”61 In later works, Hoebel came close to appreciating these distinctions when he reflected that in the primitive legal system, “the defendant must agree to some form of restitution or there can be no settlement.”62 Hoebel, however, wrongly attributed this requirement to a lack of centralized leadership.63 In a recent intellectual history of Roscoe Pound and Karl Llewellyn,64 Professor N.E.H. Hull notes that because Cheyenne perpetrators agreed to their punishment, Llewellyn was able to “beg the problematic question of [the existence of] primitive law.”65 According to Hull, Llewellyn defined law as “what officials did” leaving only the task of identifying the “officials” in any particular society as the precursor to the outline of its legal order.66 In The Cheyenne Way, Llewellyn designated “the chiefs as officers, for they were the ones who determined the penalties in consultation. If his logic was circular, his argument seemed to fit Cheyenne society, for the perpetrators accepted the authority of the punishment and behaved accordingly.”67 The logic of this tautology is as follows: (1) if there are officials, then there is a legal order; (2) officials can be identified as persons whose commands are accepted; (3) warriors in Cheyenne society 59. Stanley Diamond, The Rule of Law Versus the Order of Custom, 38 SOC. RES. 42 (1971); see also Robert Redfield, Primitive Law, 33 U. CIN. L. REV. 1 (1964). 60. See Redfield, supra note 59, at 22. 61. Id. at 20. 62. E. ADAMSON HOEBEL, THE LAW OF PRIMITIVE MAN 310 (Cambridge, Massachusetts 1954); see also 13 ENCYCLOPEDIA BRITANNICA 780, 781 (1963). 63. See HOEBEL, supra note 61, at 310-11, 318-19, 322. 64. N.E.H. HULL, ROSCOE POUND & KARL LLEWELLYN, SEARCHING FOR AN AMERICAN JURISPRUDENCE 192-93 (Univ. of Chicago Press 1997). 65. Id. at 292. 66. Id. at 292. 67. Id. at 293. 12 NEW ENGLAND LAW REVIEW [Vol. 35:1 accept the authority of chiefs; (4) hence, chiefs are the officials of the Cheyenne legal order. The difference between the “rules” that the state-based legal order utilizes to mete out “punishment” and the “acts” required in primitive culture to “restore balance” are placed in dramatic relief by the differing ways in which primitive culture and state society incorporate “games” into their societal weave. According to the French anthropologist, Clause LeviStrauss, in state society, “games” are utilized exclusively for disjunctive purposes; that is, to produce winners and losers.68 However, in primitive society, games are often utilized to create conjunction; that is, to restore societal balance and symmetry.69 For example, New Guinea Tribes who have learned football will play the match for several days running until each side achieves the same score.70 Similarly, the Fox Indians practice a ritual game during funeral rites in which the “dead” play the “living.” The “dead” always win; thereby, providing them with the illusion of life (by “killing” their opponent), and ritualistic equality with the “living.”71 Ethnologies of primitive peoples are abound with similar illustrations of this principle of balance.72 While Hoebel and Llewellyn treated the Cheyenne social order as a test subject for their theory of the Order of the Entirety, Levi-Strauss (who originally studied to be a lawyer) offers an historical example of the importance of the principle of balance and symmetry to the ordered existence of primitive society. In Tristes Tropiques, Levi-Strauss recounts the importance of the elaborate village designs of South American tribes to the continuation and maintenance of their society, a fact well known to the Spanish missionaries who sought to convert these “savages” to Christianity: The circular arrangement of the huts around the men’s house is so important a factor in their social and religious life that the Salesian missionaries in the Rio das Gasças region were quick to realize that the surest way to convert the Bororo was to make them abandon their village in favour of one with the houses set out in parallel rows. Once they had been deprived of their bearings and were without the plan which acted as a confirmation of their native lore, the Indians soon lost any feeling for tradition; it was as if their social and religious systems (we shall see that one cannot be dissociated from the other) were too complex to exist without the pattern which was embodied in the plan of the village and of 68. 69. 70. 71. 72. CLAUSE LEVI-STRAUSS, THE SAVAGE MIND 32 (Univ. of Chicago Press 1962). Id. at 31. See id. at 30-31. See id. at 32. See, e.g., Bruce Biggs, Translations from the Maori, in MARSHALL D. SAHLINS, STONE AGE ECONOMICS 160 (1972); or the more complicated exchange of the fai tuatina, fai matua, fai soko, described by RAYMOND FIRTH in WE, THE TIKOPOA 433 (1936). 2000] STARE DECISIS 13 which their awareness was constantly being refreshed by their everyday activities.73 From this abbreviated, but more complete, perspective on the workings of primitive culture, the same criticism that Llewellyn leveled at the failure of stare decisis to adequately explain what is “really going on” in the modern legal order can also be fairly leveled at Llewellyn’s Order of the Entirety as a model of the Cheyenne “way.” The failure of Llewellyn’s and Hoebel’s construct of the Order of the Entirety as an explanation of the true processes underlying the workings of a legal order may be found in the challenge that Llewellyn sought to answer. Llewellyn, like other preceding and subsequent commentators, analyzed stare decisis as a “rule,” and, therefore, sought to find a better “rule” to substitute for it. In focusing on this task, Llewellyn erred on two levels. From an anthropological perspective, he failed to appreciate the fact that “rules” in primitive cultures do not perform the same function as “rules” perform in state-based society. However, just as importantly, Llewellyn failed to appreciate that the “rules of precedent” in state-based society likewise do not function as “rules,” and that any attempt to replace them with a “better rule” will inevitably fail.74 To properly reorient the problematique of stare decisis from this error, one must pursue the criticisms of traditionalism that Llewellyn enunciated to an earlier voice: German philosopher Friedrich Nietzsche. IV NIETZSCHE’S CRITIQUE OF TRADITIONALISM Many philosophers in the late industrial age deeply quarreled with the ball-and-chain of traditionalism,75 but no philosopher railed against its limitations as did Nietzsche. Indeed, it is fair to say that Nietzsche created an entire philosophy from his perspective on this conflict. In Nietzsche’s view, the force of traditionalism has, over the ages, reduced modern man to a “herd man”76 that is so yoked to the concept of tradition that “any custom is better than no custom.”77 What is tradition? A higher authority which one obeys, not because it commands what is useful to us, but because it commands. What distin- 73. CLAUSE LEVI-STRAUSS, TRISTES TROPIQUES 220 (1974). 74. Clark A. Remington, Llewellyn, Antiformalism and the Fear of Transcendental Nonsense: Codifying the Variability Rules in the Law of Sales, 44 WAYNE L. REV. 29, 33 (1998). 75. See, e.g., Karl Marx’s observation that “the tradition of all the dead generations weighs like a nightmare on the living.” Karl Marx, The Eighteen Brumaire of Louis Bonaparte, in KARL MARX SELECTED WRITINGS 300 (David McLellan ed., Oxford Univ. Press 1977). 76. Friedrich Nietzsche, Beyond Good and Evil, in THE BASIC WRITING OF NIETZSCHE 301 (Walter Kaufman ed., trans., 1992). 77. FRIEDRICH NIETZSCHE, DAYBREAK 15 (Cambridge Univ. Press 1997). 14 NEW ENGLAND LAW REVIEW [Vol. 35:1 guishes this feeling in the presence of tradition from the feeling of fear in general? It is fear in the presence of a higher intellect which here commands, of an incomprehensible, indefinite power, of something more than personal - there is superstition in this fear. Originally all education and care of health, marriage, cure of sickness, agriculture, war, speech and silence, traffic with one another and with the gods belonged within the domain of morality: they demanded one observe prescriptions without thinking of oneself as an individual. Originally, therefore, everything was custom, and whoever wanted to elevate himself above it had to become lawgiver and medicine man and a kind of demi-god: that is to say, he had to make customs - a dreadful, mortally dangerous thing!78 The terms that Llewellyn and Hoebel utilized in their framework of the Order of the Entirety — “whole,” “drift,” and “drive” — bear a strong resemblance to words and phrases employed by Nietzsche in his earlier formulation of the dilemmas and obstacles confronting modern moral society. For example, Nietzsche’s analysis of “moral society” postulates, as did Llewellyn’s and Hoebel’s analysis of the legal order, the existence of a “whole” constituting the “structure of society.”79 This “whole” is continually challenged by “strong and dangerous drives”80 which parallel the “individual and personal” drives described by Llewellyn and Hoebel in The Cheyenne Way. From Nietzsche’s perspective, “the totality of one’s drives constitutes his being,”81 which, when exposed to the forces of traditionalism, is immediately subject to persecution. The highest and strongest drives, when they break out passionately and drive the individual far above the average and the flats of the herd conscience, wreck the self-confidence of the community, its faith in itself, and it is as if its spine snapped. Hence just these drives are branded and slandered most.82 Nietzsche goes so far in his polemic to assert that, as a necessary prerequisite to the evaluation of individual drives, we must first purge ourselves of all laden concepts of traditionalism or, as he entitled one of his books, we must advance “Beyond Good and Evil.” [A particular individual drive] [i]n itself it has, like every drive, neither this moral character nor any moral character at all, nor even a definite attendant sensation of pleasure or displeasure: it acquires all this, as its second nature, only when it enters into relations with drives already baptised good or evil or is noted as a quality of beings the people have already evaluated and determined in a moral sense. 83 78. 79. 80. 81. 82. 83. Id. at 11. See Nietzsche, supra note 76, at 303. Id. NIETZSCHE, supra note 77, at 74. Nietzsche, supra note 76, at 303. NIETZSCHE, supra note 77, at 26. 2000] STARE DECISIS 15 Llewellyn and Hoebel hoped to expose the true dynamics of the legal order by a cross cultural examination of the Cheyenne, American, and German legal systems. Nietzsche previewed their efforts in his investigation of “moral society” by seeking to examine “morality” in the context of “many moralities.” In his investigation, Nietzsche criticized the endeavors of previous “moral philosophers” because while they “knew the facts of morality,” they never laid eyes on the real problems of morality; for these emerge only when we compare many moralities. In all “science of morals” so far one thing was lacking, strange as it may sound: the problem of morality itself; what was lacking was any suspicion that there was something problematic here. What the philosophers called “a rational foundation for morality” and tried to supply was, seen in the right light, merely a scholarly variation of the common faith in the prevalent morality; a new means of expression for this faith; and thus just another fact within a particular morality; indeed, in the last analysis a kind of denial that this morality might ever be considered problematic - certainly the very opposite of an examination, analysis, questioning, and vivisection of this very faith.84 Nietzsche’s view of the so-called “rational foundation for morality” that was expressed by these prior philosophers as constituting no more than a “scholarly variation” of the “herd conscience” echoes throughout Llewellyn’s criticisms of the so-called rules of precedent. For both Nietzsche and Llewellyn, the “scholarly” “legalistic” articulation of a “science of morality” “rules of precedent” constitute merely an illusion which distracts from the true conflicts confronting the “moral” “legal” order. Nietzsche’s selection of the “scholar” (the “philosopher”) as the person best able to guide moral society over the “flats of the herd conscience”85 predates, but is parallel to, Llewellyn’s and Hoebel’s selection of Holmes’ “wisest jurist” or the Cheyenne’s “intuitive juristic precision” as a guide through the Order of the Entirety. Nietzsche described the task set for his scholar/philosopher as follows: More and more it seems to me that the philosopher, being of necessity a man of tomorrow and the day after tomorrow, has always found himself, and had to find himself, in contradiction to his today: his enemy was ever the ideal of today. So far all these extraordinary furtherers of man whom one calls philosophers, though they themselves have rarely felt like friends of wisdom but rather like disagreeable fools and dangerous question marks, have found their task, their hard, unwanted, inescapable task, but eventually also the greatness of their task, in being the bad conscience of their time. By applying the knife vivisectionally to the best of the very virtues of their time, they betrayed what was their own secret: to 84. Nietzsche, supra note 76, at 288. 85. Id. at 311. 16 NEW ENGLAND LAW REVIEW [Vol. 35:1 know of a new greatness of man, of a new untrodden way to his enhancement.86 In his seminal work, Thus Spake Zarathustra, Nietzsche created this self-described philosopher, who, like Nietzsche, confronted men “sitting on an old conceit: the conceit that they have long known what is good and evil for man”87 with the following admonition: And I bade them overthrow their old academic chairs and wherever that old conceit had sat; I bade them laugh at their great masters of virtue and saints and poets and world-redeemers. I bade them laugh at their gloomy sages and at whoever had at any time sat on the tree of life like a black scarecrow. I sat down by their great tomb road among cadavers and vultures, and I laughed at all their past and its rotting, decaying glory. 88 Nietzsche’s selection of a “superman” to lead the “herd man” through and beyond the restraints of traditionalism has continually recirculated -in less bombastic form — in the literature of stare decisis. For example, Ronald Dworkin’s “Superhuman Judge ‘Hercules,’”89 as described in recent discussions of the stare decisis, is, in large measure, merely the most recent iteration of Holmes’ “wisest jurist.”90 Both Holmes’ and Dworkin’s protagonists are, however, predated by Nietzsche’s concept of the scholar/philosopher. Despite this similarity, all of the works of stare decisis commentators to date would likely be viewed by Nietzsche as mere “scholarly variations” of the “herd conscience.” There is much to commend this supposition for the solution to the elaborate puzzle posed by the enunciation of stare decisis in English common law is emphatically Nietzschean. V. THE ORIGINS OF STARE DECISIS IN CANON LAW Scholarly inquiries into the origins of stare decisis in English common law begin at the earliest in the late 1200s,91 but more commonly in the 1600s.92 However, just as Llewellyn’s and Hoebel’s concept of “drive” 86. 87. Id. at 327. FRIEDRICH NIETZSCHE, THUS SPAKE ZARATHUSTRA 196 (Penguin Books, 1966). 88. Id. 89. Peters, supra note 16, at 2074 (citing RONALD DWORKIN, LAW EMPIRE 21718, 239 (1987)). 90. See DWORKIN, supra note 89, where he describes certain philosophies of law: “They say that law is instinct rather than explicit in doctrine, that it can be identified only by special techniques best described impressionistically, even mysteriously. They say that judging is an art not a science, that the good judge blends analogy, craft, political wisdom, and a sense of his role into an intuitive decision, that he ‘sees’ law better than he can explain it, so his written opinion, however carefully reasoned, never captures his full insight.” Id. at 239. 91. See supra note 7 and accompanying text. 92. Gerald J. Postema, Some Roots of our Notion of Precedent, in PRECEDENTS IN 2000] STARE DECISIS 17 and “whole” had antecedents in the earlier philosophy of Nietzsche, the concept of stare decisis also has antecedents in an earlier period. The origins of stare decisis actually reside in the Canon law. In a 1978 article, entitled Canon Law and the Common Law,93 Professor William Bassett outlined the many varied and substantial contributions of Canon law to the English common law. According to Bassett, citing Woodbine, the influence of Canon law in English common law began with the Decree of Camaldolese monk, John Gratian, of Bologna, “a half century on either side of the year 1200.”94 In the Decree, Gratian compiled an “entire body of regulations for Christian life” from the edicts and writings of church “councils, popes, and patristic writers over the preceding eight or nine centuries.”95 Nevertheless, as Bassett notes: Gratian’s Decree may have suggested almost as many questions as it had provided answers. The papacy, having emerged from the Gregorian Reform as the undisputed guardian and master of the Canon law, attempted to answer the questions raised by the Canonists. This attempt resulted in a flood of rescripts and decretal letters from the Papal chancery, replies to particular questions, letters of delegation to local judges with instructions in the law applicable to particular cases, and mandatory solutions to moral problems.96 From this “flood,” according to Bassett, Canon lawyers embarked upon a period of great “creative activity”97 in which they “created a dynamic, living law [by breaking] the tyranny of inflexible folk customs and [restoring] life to the mummified corpse of the Roman Law.”98 Consistent with this circumstance, Professor Merryman has observed that “the great names of the common law are those of judges, but the great names of the civil law are those of scholars.”99 The Canon lawyers of Gratian’s day faced a situation different than that presented to common law jurists: Papal law originates and ends with the Roman Pontiff.100 Indeed, to this day, in contrast to their Anglican brethren LAW 910 (Goldstein et al. eds., 1987). 93. William W. Bassett, Canon Law and the Common Law, 29 HASTINGS L.J. 1383 (1978). 94. Id. at 1384. 95. Id. at 1388. 96. Id. at 1402. 97. Id. at 1410. 98. Id. at 1410. 99. Ruggero J. Aldisert, Rambling Through Continental Legal Systems, 43 U. PITT. L. REV. 935, 952 (1982) (citing J. MERRYMAN, THE ITALIAN LEGAL STYLE III: INTERPRETATION OF THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW 168 (Dainow ed. 1974)). 100. See THE CANON LAW SOCIETY OF AMERICA, THE CODE OF CANON LAW, A TEXT AND COMMENTARY, Canon 333, 353 (“There is neither appeal nor recourse against a decision or decree of the Roman Pontiff”). 18 NEW ENGLAND LAW REVIEW [Vol. 35:1 the rulings of Papal judges do not have the force of religious law.101 This impediment, however, did not prevent Canon lawyers from altering the effect of Papal edicts through interpretation, and from doing so in a manner that would impress any critic of the rules of precedent,102 including Llewellyn. Bassett offers one such example: At the beginning of the thirteenth century, Pope Innocent III (1198-1216) faced a serious problem of recruiting for the crusade projects he was promoting. To solve the problem, the Pope decreed that husbands might unilaterally make and fulfill vows to go on crusades, even without the consent of their wives. The papal ruling clearly contradicted the canonists’ belief in the consensual and contractual nature of marriage and the equality of spouses. They had steadfastly taught both these principles since the time of Pope Nicholas II (1057-1061). Pope Innocent’s ruling deprived wives of their rights in marriage. Instead of interpreting the papal decretal broadly to mean that a paramount public need of the church, namely a crusade, should take precedence over the private rights of married persons, the thirteenth-century canonists unanimously interpreted the crusader’s vow in the most restrictive way possible. There was no attempt to enlarge its scope or to apply it to other situations, although some could have made an argument by analogy so as to submerge personal rights in the exigencies of society. So restrictive was the canonists’ interpretation, in fact, that it led Thomas Aquinas to teach that, although legally permitted by the pope in this instance, such vows were nonetheless morally reprehensible. Both the canonists and later the theologians repudiated on moral grounds a legal position established by papal legislation. In effect, the canonists nullified the will of the legislator, the pope, by interpreting away his legislation.103 In their creative activity, Canon lawyers and scholars came to rely upon the same “rule of reason” that Holmes invoked nearly 700 years later in his criticisms of inflexible applications of stare decisis.104 According to Bassett: For the canonists, all law was a rule of reason. Gratian and the commentators upon his Decree brought together three distinct streams of ancient legal thought: Stoic, Christian, and Aristotelian. They used this synthesis to reject the concept of law as a blind mandate of a transcendent, prehistoric will. The canonists then proceeded to erect upon the synthesis a pragmatic notion of law as a means to achieve human ends of peace, justice, and individual well-being. This notion was an entirely new way of looking at law. For the medieval canon lawyers, if a law ceased to have a reasonable purpose, it ceased being a law: cessante causa cessat lex. Law could be law only if it were reasonable. Laws should be obeyed on- 101. See Norman Doe, Canonical Doctrines of Judicial Precedent: A Comperative Study, 54 JURIST 205 (1994). 102. See WILLIAM TWINING & DAVID MIERS, HOW TO DO THINGS WITH RULES (Weidenfeld & Nicholson eds., 1982). 103. Bassett, supra note 93, at 1415-16. 104. OLIVER WENDALL HOLMES JR., THE COMMON LAW 1 (1881). 2000] STARE DECISIS 19 ly if reasonable in the light of the justice they produced in particular cases. By demanding that law conform to reason and that reason be the judge of any law, or indeed, any act of king or pope, the medieval canonists laid the foundations for a legal revolution. That legal revolution gradually led, within the common law tradition, to an exultation of the role of the judge as both keeper of conscience and oracle of the law.105 Coincident with the residing tides of Papal and royal authority that occurred in England during the thirteenth to eighteenth centuries,106 the cross-fertilization of the Canon law rule of interpretation into the soil of English common law gave birth to a curious hybrid, the principle of stare decisis and its ultimate anointment of the common law judiciary as “both keeper of conscience and oracle of law.” Into this vacuum of power, the English judiciary gradually, but surely, expanded its influence,107 so much that, by the nineteenth century, when stare decisis was first “definitely enunciated,” the common law judiciary was, finally, openly acknowledged as an original source of law.108 The enunciation of the principle of stare decisis was a Nietzschean solution for it confirmed the judiciary’s ascension by, in effect, and to borrow Nietzsche’s words, “elevating” the judiciary “above custom [and] to become a law giver and medicine man . . . that is to say . . . to make customs.”109 If the grip of the common law English judiciary on this narrow precipice of power was tenuous at first, centuries of recorded decisions have since provided a deep foundation for the common law judiciary’s exercise of the substantial and independent authority that is not only reposed in it, but is continually replenished, by the principle of stare decisis. Indeed, in the common law system that was transplanted from England to the United States, where an even greater emphasis was placed on the creation of a strong and independent judiciary, there are over four million reported appellate decisions that today make up this foundation. It is a foundation that no other institutional source of authority in modern society can now undercut or legitimately dispute. 105. Bassett, supra note 93, at 1414-15. 106. See generally THE OXFORD HISTORY OF ENGLAND (Kenneth O. Morgan ed., Oxford Press, 1999). 107. MARK KISHLANSKY, A MONARCHY TRANSFORMED BRITAIN 1603-1714 34-64 (Penguin Books, 1996); see also J. W. ALLEN, ENGLISH POLITICAL THOUGHT 16031660 (1938); MARGARET JUDSON, THE CRISIS OF THE CONSTITUTION (1949); J. G. A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW (2d ed., 1987); JOHANN SOMMERVILLE, POLITICS & IDEOLOGY IN ENGLAND 1603-1640 (1986); THE CAMBRIDGE HISTORY OF POLITICAL THOUGHT 1450-1700 (J.H. Burns ed., 1991); GLENN BURGESS, THE POLITICS OF THE ANCIENT CONSTITUTION (1992). 108. HOLDSWORTH, supra note 13, at 147-62; see also Treanor, supra note 4; CROSS & HARRIS, supra note 4. 109. NIETZSCHE, supra note 77, at 11. 20 NEW ENGLAND LAW REVIEW [Vol. 35:1 VI. CONCLUSION In the administration of any legal order (civil, Papal, or sectarian), judges perform a function that is different from that performed by executives, or legislators: judges apply the law to individual circumstances. The Black Letter Law “cookie cutter” formulations of statutes, civil codes, and Papal law are ill-equipped for this task. They constitute, at best, blunt tools employed to perform work demanding a sharp edge. In the determination of whether particular circumstances are, or are not, subject to binding precedent, common law judges inevitably whittle away their decisions, in the same fashion that Canon lawyers, following Gratian’s Decree, narrowly enforced Innocent III’s pronouncement that “husbands might unilaterally make and fulfill vows to go on crusades, even without the consent of their wives”110 through the civil/Papal law rules of “interpretation.”111 While the means differ in form, the end result of the application of the rules of precedent in common law systems and the rules of interpretation in civil and Papal law systems to individual circumstance can only be discerned “with a magnifying glass.”112 Through these differing formulations of a similar methodology, the judiciary in common law, civil and Papal systems is able to ameliorate what anthropologist Stanley Diamond refers to as the “radical isolationism of the individual”113 in state society by, in effect, attempting to “individualize” justice. In this sense, the judiciary uses the rules of precedent/interpretation to fashion legal judgments much in the same way that a whittler carves a piece of wood into a figure, i.e., this rule cuts this way and that rule cuts that way until an individual figure is formed. When viewed from an inter-institutional standpoint, rather than purely as a methodology for individualizing justice, a different analogy applies. In this context, the rules of precedent interpretation are more appropriate to a bricks and mortar analogy than to the nautical motif114 that accompanies the accepted problematique of traditionalism. From this perspective, stare decisis is cast as the mortar (the rule of reason) that allows judges to construct a workable and fair structure from bricks and stones supplied by others (the edicts of legislators, executives, and law givers). The fact that when the mortar of the so-called rules of precedent hardens, it takes on the characteristics of the stones and bricks that it binds together is an unavoidable consequence of the more important task of administering a workable 110. Bassett, supra note 93, at 1414-15. 111. Id.; see also Ruggero Aldisert, Precedent: What It Is and What It Isn’t; When Do We Kiss It and When Do We Kill It?, 17 PEPP. L. REV. 605, 608 (1990); Ruggero Aldisert, Rambling Through Continental Legal Systems, 43 U. PITT. L. REV. 935 (1982). 112. Ruggero Aldisert, Rambling Through Continental Legal Systems, 43 U. PITT. L. REV. 935, 958 (1982). 113. Diamond, supra note 59, at 71. 114. See Peters, supra note 16. 2000] STARE DECISIS 21 and fair structure for the rendering of individualized justice. In such an endeavor, the determination of the appropriate amount of mortar to use in building any particular structure is not an exact science, and is incapable of being reduced to a set of “rules.” Thus, while it is true that the use of too much or too little mortar in this process will result in a less stable structure, the common law rules of precedent and the civil law rules of interpretation serve only as “guidelines”115 rather than “rules” for applying codified law to individual circumstance. In this regard, the so-called rules of precedent/interpretation may be reduced to the following simple formulation: like cases should be treated alike, unless there is a good reason not to do so. And, for a catalogue of those reasons, the reader is referred to the innumerable opinions discussing the “special justification” noted by Justice Rehnquist in the Dickerson decision as a reason for departing from precedent. If the “end result” of the common law rules of precedent and the civil/Papal law rules of interpretation are so similar,116 the question remains why the two systems adopted such differing terminology to achieve a seemingly shared objective. The answer lies in history and in the allocation of societal power in common law systems to the judiciary compared to its differing allocation in civil/Papal systems. Through the historical circumstances described in Part IV of this article, the mechanism of stare decisis was utilized by the common law judiciary to legitimize and perpetuate a more prominent place for itself in the allocation of societal power than that enjoyed by its civil/Papal law counterparts. The rules of interpretation could not serve this function since those rules are founded on the premise of civil/Papal systems that the judiciary is subservient to other organs of government (the legislative and executive). In this respect, the principle of stare decisis and the rules of precedent are territorial — they mark and maintain the common law judiciary’s turf. While Justice Scalia, in his Dickerson dissent, finds such markings to portend a “boundless doctrine of judicial empowerment,”117 they are more accurately viewed as political statements from those who have a seat at the table of societal power: the makers of customs. 115. Ruggero Aldisert, Precedent: What It Is and What It Isn’t; When Do We Kiss It and When Do We Kill I?, 17 PEPP. L. REV. 605, 616 (1990). 116. Aldisert, supra note 112 at 958. 117. Dickerson v. United States, 120 S. Ct. 2326, 2345 (2000).