Taking Precedent Seriously 3
because it is our dialogue with the past that makes us what we are as cultural beings.’
Yet despite its ubiquity and obvious importance in law, the doctrine of precedent is a deeply problematic one in every legal system. I would divide this problematic into two major categories, the theoretical and the practical. The theoretical problem lies in an apparent contradiction between the practice of deciding according to past cases on the one hand and the very conception of“law” on the other. The law, as we generally understand it, exists prior to and separately from the rulings of the judges. This is because we do not tend to understand the judge’s role as that of legislator; the duty of the judge is to find and to apply the law, not to make it. A legislator creates law through an exercise of political authority. The creation of law is an expression of legislative will which need not be justified according to the terms of existing law; by definition, the act of the legislator cannot be legally“incorrect.”® The court, on the other hand, does not establish law on the basis of its own will. It resolves questions of law by justifying its answers as correct interpretations of the existing legal materials. A judge therefore owes primary fidelity to the law and not to the rulings of other judges who, after all, are also engaged in finding and applying the law. If the law is something other than the judge’s ruling, then it is possible for a judge to err, to misinterpret the law and to render an incorrect decision. If I find that a previous judge ruled incorrectly, why should I be constrained to follow that ruling merely because it preceded me in time? Are not both of us, I and the earlier judge alike, equally bound to decide our cases“according to the law”? If that earlier decision is, in my considered opinion, not according to the law, why should it exercise binding authority over my own good judgment? Against all of this, the doctrine of precedent asserts that to some significant extent the ruling of a prior judge is law, is binding upon me, precisely as though it was an act of legislation. This idea would seem to run counter to our conception of law.
The practical problem flows from our contemporary view of law as a progressive phenomenon; that is, law changes and has always changed to meet the needs of its community. And this is as it should be. Judges must be free to innovate, for even if we concede that a particular decision may have been“right” at one time, we do not thereby concede that the same decision is right for all time. We would agree with Justice Holmes that“it is