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Mark Washofsky
walk that path when we find new meanings in old texts and when we take precedent seriously.
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Notes
Anthony T. Kronman ,“Precedent and Tradition,” Yale Law Journal 99(1990), 1029-1068, at 1033.
This does not mean that we cannot imagine a kind of law where precedent plays no constraining role. Kronman himself(see note 1) reminds us of Max Weber 's notion of“charismatic authority,” which recognizes no constraint of any kind upon the right of the inspired leader to declare the law; see Anthony T. Kronman , Max Weber (Stanford : Stanford U. Press , 1983), 47-50. The remarks in the text refer to the other“types” of law, those Weber would term“traditional” or“legal-rational,” that more accurately resemble the activity of law as we know it in the developed legal traditions.
It is possible to argue that precedent exerts a strong influence upon other intellectual activities besides law—one thinks here of the entire range of public social and political discourse—that relies upon argumentation rather than philosophical demonstration as its chief method for arriving at knowledge. Unlike demonstrative proof, which is equivalent to formal logic and is hence universal in its truth claims, argumentation addresses itself to particular audiences, utilizing techniques to gain their assent to a thesis presented for their approval. Precedents, understood here as the agreed-upon starting points for discussion, are absolutely crucial if coherent argument is to take place.“That is why so often the best justification of a course of conduct—the one that dispenses with the need for any other reason—consists in showing that the course is in conformity with the recognized order, that it can avail itself of unquestioned precedents”; Chaim Perelman , The Idea of Justice and The Problem of Argument(New York: Humanities Press, 1963), 157. This is certainly correct; however, my goal here is to distinguish law primarily from those more philosophical disciplines that do not grant the past any a priori influence over the present. Even among the public discourses, moreover, I think that Perelman would agree that precedent plays its most systematic and formal role in the discipline of law.
The literature is vast; the following is but a partial list. Frederick Schauer , “Precedent,” Stanford Law Review 39(1987), 571-605; Cass R. Sunstein , Legal Reasoning and Political Conflict(New York : Oxford U. Press , 1996), 76-77; Richard Wasserstrom, The Judicial Decision(Stanford : Stanford U. Press , 1961), 39-83; Edwin W. Patterson, Jurisprudence: Men and Ideas of the Law (Brooklyn: The Foundation Press, 1953), 97; Karl Llewellyn ,“Case Law, ” Encyclopedia of the Social Sciences (New York : Macmillan, 1930), 3:249; Edgar Bodenheimer ,“Law as Order and Justice,” Journal of Public Law 6(1957),