2 Mark Washofsky

recognized power to confer legitimacy in these disciplines; “truth,” as conceived by philosophers and scientists, is not arrived at through a process of conversation with the past but by methods of inquiry accepted as proper in that particular subject area.“Whatever conclusion you reach, the fact that Plato (or any­one else) held a certain view will not be for you a reason to adopt that view yourself. You must make up your own mind as to which view is correct, and however informative the positions of your predecessors, it does not count in favor of any position... that some or all of them held it.”" Truth, in other words, is a stan­dard entirely independent from time; truth may be present in the words and writings of the sages of the past, but it is separate from those words and theoretically can be attained without recourse to them. For jurists, by contrast, the past does confer legitimacy.> An argument from precedent is not only acceptable before a court of law, it is often the crucial factor that determines the judge’s ruling.

Why law should differ so essentially in this regard from other intellectual practices’ is a question that has provoked much interest among legal theorists. Some note that the practice of fol­lowing confers a number of important benefits upon a legal sys­tem. Among these are fairness(similar cases and circumstances ought to be treated in a similar fashion); predictability or stabil­ity(the knowledge that courts will continue to apply existing rules introduces an element of certainty into the law, allowing individuals to plan their affairs accordingly); and efficiency(fol­lowing precedent allows judges to conserve their decision-mak­ing energies, saving their limited time and resources for the creative resolution of problems that are truly new and different and which demand much careful attention). Reasoning by anal­ogy(the search for“prototypical cases,” another way of saying “precedent”) limits the judge, reducing the likelihood that a deci­sion will be controlled by prejudice or bias. Precedent, by serving as an agreed-upon fixed point in legal reasoning, also facilitates agreement among members of a legal community who may diverge on many other matters. It is also possible to justify the doctrine of precedent as a value in and of itself, on the grounds that culture, of which law is a principal constitutive element, is historical in nature, founded upon a kind of partnership between the contemporary generation and all those that have preceded it. We respect and seek guidance from the past, in other words,