Professional Documents
Culture Documents
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 seven-
to-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 result-
ing 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 ni -
terpreting 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
2
warnings have become part of our national culture.
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 philo-
sophical 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 nine-
teenth century. 4 However, the gestation of stare decisis began in the thir-
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 opin-
ions.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 memo-
rialized, 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 com-
mentaries. 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
14
rule simply persists from blind imitation of the past[,]
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 attain-
ment 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
15
own sake - that the world of culture can be sustained[,]
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 deci-
sions 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 compet-
ing interests in order to explain and isolate the so-called rules of prece-
dent.17
It is the thesis of this article that the accepted problemique of traditional-
ism 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.
Despite trappings of robes, marble, bailiffs, clerks, wigs, and other ac-
coutrements 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
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 di-
lemma: how do judges, who are not above the law, but are nevertheless
charged with enforcing it, do so without becoming or appearing to be-
come, 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 deci-
sions 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 politi-
cal 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 cir-
cumstances that enabled the common law judiciary, through the enuncia-
tion of stare decisis, to annex a broad range of economic, social, and po-
litical 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 anthro-
pological works that touch on the subject of traditionalism and its relation-
ship 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.
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 justify 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 commentar-
ies 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. Ad-
amson 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 En-
tirety” 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,” “rec-
ognized 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 con-
struct 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
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 Llewel-
lyn’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 diver-
gent 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 ‘cen-
ters’ 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 chal-
lenge.”36 In their system, Llewellyn and Hoebel assert that the interaction
of societal Drift and individual Drive through the bringing of Claims cre-
ates 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 con-
tinues 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
Llewellyn conclude that this “feeling” corresponds to the societal Drift that
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
42 . Id. at 284.
43 . LLEWELLYN & HOEBEL, supra note 27, at 284.
44 . Id.
45 . Id. at 285.
46 . Id. at 288.
47 . Id. at 327.
2000] STARE DECISIS 9
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 ra-
48
tional construct and rational development thereof.
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 limita-
tion:” 49
And from the surrounding culture came reinforcement from the curious
German urge to follow through the logic of a premise the more tena-
ciously, 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
50
had been.
48 . Id. at 310-11.
49 . LLEWELLYN & HOEBEL, supra note 27, at 312.
50 . Id.
51 . Id. at 311.
52 . Id. at 312.
53 . Id. at 311.
10 NEW ENGLAND LAW REVIEW [Vol. 35:1
clothed in rules, was exceedingly rare among them. It is the more nota-
ble because they did not have many fixed rituals of procedure to guide
them, around whose application or whose ceremonial formulae and be-
54
havior, concepts of legal correctness so readily come to cluster.
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 “rig-
orous 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 irrita-
tions,” 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 accumu-
lating 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 un-
derlying 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 Chey-
enne-like work under the cross-thrust of the case, the given “law” materi-
57
als, and the future.
Thus, Llewellyn and Hoebel close The Cheyenne Way with the tragic ob-
servation 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
individual and the state.59
54 . Id. at 312-13.
55 . See LLEWELLYN & HOEBEL, supra note 27, at 312-13.
56 . Id. at 339.
57 . LLEWELLYN & HOEBEL, supra note 27, at 333-34.
58 . Id. at 340.
59 . Stanley Diamond, The Rule of Law Versus the Order of Custom, 38 SOC. RES.
2000] STARE DECISIS 11
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 M AN 310 (Cambridge, Massa-
chusetts 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
The difference between the “rules” that the state-based legal order util-
izes 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 Levi-
Strauss, 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 Eth-
nologies 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 im-
portance of the principle of balance and symmetry to the ordered existence
of primitive society. In Tristes Tropiques, Levi-Strauss recounts the im-
portance 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 Christia n-
ity:
The circular arrangement of the huts around the men’s house is so impor-
tant a factor in their social and religious life that the Salesian missionar-
ies 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 de-
prived of their bearings and were without the plan which acted as a con-
firmation of their native lore, the Indians soon lost any feeling for tradi-
tion; 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 which
their awareness was constantly being refreshed by their everyday activi-
73
ties.
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 an-
swer. Llewellyn, like other preceding and subsequent commentators, ana-
lyzed 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 prob-
lematique of stare decisis from this error, one must pursue the criticisms of
traditionalism that Llewellyn enunciated to an earlier voice: German phi-
losopher Friedrich Nietzsche.
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 cus-
tom 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-
guishes this feeling in the presence of tradition from the feeling of fear in
Llewellyn and Hoebel hoped to expose the true dynamics of the legal
78 . Id. at 11.
79 . See Nietzsche, supra note 76, at 303.
80 . Id.
81 . NIETZSCHE, supra note 77, at 74.
82 . Nietzsche, supra note 76, at 303.
83 . NIETZSCHE, supra note 77, at 26.
2000] STARE DECISIS 15
86
hancement.
86 . Id. at 327.
87 . FRIEDRICH NIETZSCHE, THUS SPAKE ZARATHUSTRA 196 (Penguin Books,
1966).
88 . Id.
89 . Peters, supra note 16, at 2074 (citing RONALD DWORKIN, LAW EMPIRE 217-
18, 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
LAW 910 (Goldstein et al. eds., 1987).
2000] STARE DECISIS 17
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) (c iting 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”).
101 . See Norman Doe, Canonical Doctrines of Judicial Precedent: A Comperative
18 NEW ENGLAND LAW REVIEW [Vol. 35:1
impediment, however, did not prevent Canon lawyers from altering the
effect of Papal edicts through interpretation, and from doing so in a man-
ner 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 canon-
ists’ 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 pa-
pal decretal broadly to mean that a paramount public need of the church,
namely a crusade, should take precedence over the private rights of mar-
ried persons, the thirteenth-century canonists unanimously interpreted the
crusader’s vow in the most restrictive way possible. There was no at-
tempt 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’ ni -
terpretation, in fact, that it led Thomas Aquinas to teach that, although
legally permitted by the pope in this instance, such vows were nonethe-
less morally reprehensible. Both the canonists and later the theologians
repudiated on moral grounds a legal position established by papal legisla-
tion. In effect, the canonists nullified the will of the legislator, the pope,
103
by interpreting away his legislation.
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 Bas-
sett:
For the canonists, all law was a rule of reason. Gratian and the commen-
tators 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, prehis-
toric will. The canonists then proceeded to erect upon the synthesis a
pragmatic notion of law as a means to achieve human ends of peace, jus-
tice, 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
only 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 canon-
ists laid the foundations for a legal revolution. That legal revolution
gradually led, within the common law tradition, to an exultation of the
105
role of the judge as both keeper of conscience and oracle of the law.
Coincident with the residing tides of Papal and royal authority that oc-
curred 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 ascen-
sion by, in effect, and to borrow Nietzsche’s words, “elevating” the judic i-
ary “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 ap-
pellate decisions that today make up this foundation. It is a foundation that
no other institutional source of authority in modern society can now un-
dercut or legitimately dispute.
VI. CONCLUSION
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).