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
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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).
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STARE DECISIS
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[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).
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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.
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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-
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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).
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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.
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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.
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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.
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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.
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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.
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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).
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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).
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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.
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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.
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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
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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”).
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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).
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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.
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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.
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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).