The making of legal cases and the idea of precedent in the common law

The making of legal cases and the idea of precedent in the common law*

Thanos Zartaloudis


The point of an inquiry into the philosophical elements of the making of legal cases is not to conceive of a philosopher-king or a philosopher-judge. The point is also not to disregard (legal) practice or pragmatics, for example, in judging or legislating to contrast practice to theory in some naïve antinomianism. As Fish suggests, for instance, judging and giving an account of judging are two independent activities ‘even though the successful performance of the first will often involve engaging in the second’ (Fish, 1987: 1779). That theoretical questions arise and are often presupposed in the practice of judging and in giving accounts of it is fairly obvious. In judicial interpretation the distinction or relation between the ‘real nature of things’ to which the words of a statute refer as opposed to legal or ordinary conventions governing the use of such words, entails presuppositions as to the distinction between ordinary reality and legal reality or better about the relationship between ordinary convention and legal convention, and much can be gained by interrogating such presupposed relations (a distinction is always a relation). Furthermore, the long-standing claim of legal practice and legal reason as to consistency or what Dworkin calls ‘articulate consistency’ (Dworkin, 1977: 88), entails a presupposition of the knot between a particular decision of a case and the reasoned continuity of earlier cases, implying a particular understanding of the legal ‘whole’ in relation to the legal particular or case. Such a whole has been often called legal history or jurisprudence, the work of which it is presumed takes place in the figment of each particular case before the court.

It remains a question to ask: what kind of history is such a presumed chain enterprise of cases? And, also, what kind of figmentation takes place when it is presupposed that a particular case fits (or does not fit) such a proposed historical evolution? Ultimately the question is one of what kind of historizing takes place or is internalized by the judge in the making (or the seeing; in gr. idein, etymologically linked to idea) of a legal case, in deciding, that is, cutting (decidere) the past?

It is worth keeping in mind from the outset three elementary notes as to the particular approach here to the making of legal cases. First, the law is a routine, an apparatus, allowing certain arguments to be argued and certain decisions to be presented each time in the pragmatic – though inherently political – manner of presenting one’s decision ‘in a form most likely to secure its acceptance’ within the systemic understanding of law and decision making (Fish, 1987: 1790). Such a legal practice through the politics of its rhetorical persuasion conceals in the guise of juridical metaphysics, the fact that decisions are preceded and followed by the unfolding of their force each time: they are made.1 Yet juridical metaphysics are presupposed ‘in the name of the law’ as such, which renders judicial decisions and legal pragmatics, more generally, as inherently uncoupled from both an exposition of being merely-made and from their entailed desire.

The making of a legal case or decision is presented as taking place in law and in the name of the law and the desire of the subject making that law or decision is at best discoursed as legislative or judicial intention, once more, in the name of the law. This is not to deny that subjectivity and desire are themselves always subject to interpretive constructions or to deny that any action (including judicial decision-making) requires a ‘forgetfulness’ as its condition of possibility (Fish, 1987: 1798). But it is to stress the need to not abandon the exposition of such forgetfulness as such. Forgetfulness may be a necessary condition but when exposed as such it turns law-making and case-making to their original contingency and construction as well as to the ever-political agency of their making. Theory, in turn, cannot offer some unforgetful condition of conditions, nor can it escape its own constructions and contingency, yet theory can provide for a means to turn the law towards its making as such, towards the showing, at least, of the existence of other potential legal paths amidst the already decided legal cases (conceived in the widest sense of ‘things’ or ‘examples’); as well as to point to the existence of other non-legal paths.

Second, what prompted here the turn to the question of the making of cases and the setting of precedent as a key element to the understanding and standing of cases in English common law was the rereading of cases whereby when judges attempt to apply a legal principle and discuss the very applicability as such in question they state things like the following: ‘This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is quite unique.’2 The question of interest here is the way the court conceives of its judicial role with regard to what may essentially be seen as a moral question, as well as the way a situation is demarcated as a singular case that falls (casus) before the court. Another question of interest is internal to judicial decision-making: how to draw analogical reasoning between different situations? For example, the court, in Re A (children) (conjoined twins) [2000] asked: if there are rules concerning the killing of non-conjoined persons, do these rules apply in an identical fashion to conjoined persons?3 Similarly of interest are questions raised in courts like the following in a more general sense: there may be indeed no right or just decision to be found here, yet we must reason a decision that connects the facts of the situation at hand with the legal principle that is said to govern such situations. How is the particularity or exceptionality of a case in relation to a rule in question be seen to be applied, let alone, in certain cases, be seen to redefine the so-called foundation of that same rule anew? It, thus, remains useful to reopen the questioning of the making of connections in legal cases and decisions. That is, of interrogating the seeking of the so-called true or real basis of (legal) things at the very moment when it is presupposed or, better, made up.

In need of initial reflection is the making of legal things as such through the presupposed distinction between legal things and non-legal things. While this is a philosophical question as to the ontology of the creation of legal categories and entities, it is foundational for the making of law in practice as it forms a presupposition of its logic and discourse. This inquiry triggers the questioning of legal reality as such or what could be called the vantage point claimed by law as its way of looking at the world, or life. As Honoré puts it: ‘To attain this point of vantage requires the transformation of the data of ordinary life into those of a special drama with its own personages, costumes, and conventions, not to mention the invention of new personages and relationships not found in the state of nature’ (Honoré, 1977: 112). In asking the question, therefore, of the making of cases, the question extends to the very understanding of what renders life and knowledge into legal life and knowledge.

This leads to a third preliminary element to note for the purposes of this inquiry. What does the very word in the title as to the Idea of Precedent refer to? Reference to the term idea is made here in a particular etymological and philosophical sense. What is referred to is, in fact, an experience, from the Greek word Idein which means to see. Reference to seeing is usually made in the sense of a general capacity or function of human beings, which is more often than not taken for granted – ‘we simply see because we see’. It is of interest, though, that from as early on as in Homer ‘to see’ signified many different things humans do with their eyes. In fact to see meant everything except to see in the sense in which we self-referentially understand the term in late modernity. The eye it can be said, in this sense, then, is not the ‘origin’ of sight. To see involves an internal growth, what the ancients called the Soul, to which the eye is already a migration or ‘a metaphor’.4 In other words, our ways of seeing are from the start technological or constructed – they are as contingent as fabricated (made as well as fictional or made up); they are contingent experiences. This is so to such an extent that the process of seeing and the things we see, as a result, cannot be separated. In this sense, the term Idea refers to the empiricism of what can be called knowability, a certain potential capacity of human beings that stands beside (para) the actually seen on each occasion. If the condition of (legal) sight is a certain knowability or sight-ability, then how is this ability to be thought with and against its instantiated limitation? Does not the law in its interpretatio verborum also refer to a parallel ability in the sense of finding in the immanent legal logos (or discourse) the supposedly unwritten or sigetically declared law which is not yet incarnate in a formal legal declaration or decision? How is this presupposed and much silenced ability, or ‘faculty’, to be thought?

On making (legal) things

In law as a systemic operation, as well as in thinking law more generally, we are accustomed, explicitly or implicitly, to the making of distinctions. The primary distinction in all legal systems is that between the legal and the non-legal (the distinction between the legal and the illegal is conditioned on this primary distinction). It is worth stressing that this key distinction or differentiation takes place within the systemic understanding of law. That is, it is a legal distinction that purports to differentiate the legal from the non-legal. The continuing relevance of this internal distinction between what is inside and what is outside the law can be illustrated in many ways for current purposes. For instance, with regard to thinking about precedent this could serve to illustrate the missing question prior to the peculiar presupposition of the distinction between law as made and as merely exposed or found. This also serves to underlie the question as to the difference between thinking of the reasoning of common law via precedent and thinking of the reasoning that one acquires more generally through ordinary experience; as well as through the differentiation between (legal) customary thinking and precedential thinking as formally reasoned. Recurrent debates, finally, as to whether precedential case law is law at all point to the continuing significance of the questioning proposed here.

Central to what can be called the making of legal things with particular reference to the common law, at least in England, is the mechanism known as precedent: as the operation of the making of legally binding or persuasive (or both) case-law. Hence thinking of precedent with regard to the making of case-law remains key to the wider understanding of at least one part of the legal system (case-law), that is, its internal self-understanding; as well as to its self-differentiation with whatever is held to lie outside the legal system. The question of this understanding is reopened here, and more specifically, it is suggested that this self-understanding remains the latest nihilistic form of the old problem of the law’s self-understanding and autonomy, its presupposition of self-law-giving, of a legal self-sufficiency. MacCormick defines precedent in the following way: ‘The judicial opinion which sets or constitutes a precedent is a judge’s opinion considered as stating a justification of a decision’ (MacCormick, 1987: 155). This can be reread to stress the making of a precedent as taking place in the statement of a decision, that is, in the act of saying right. What can be stressed at this point is not just the normativity of legal decision-making of and through precedent, but first of all the taking place of a form of normalization in the rendering intelligible of legal things (to use Foucault’s term: an act of problematization – rendering something as a legal problem) (see Foucault, 1985). Not just a questioning of the normative justification and logical legitimacy, then, but also of the act of presupposition or application (or both) as such: the saying of right as ever being an act upon another act that must allegedly always conceal a nonetheless exclusive right to say right, to act or decide ‘in the name of the law’.

The problem in other words is not with the occasional need to decide on things or to fabricate legal things or fictions, but with deciding ‘in the name of law, justice and so forth’ to silence the act of doing so as a particular action by an agent. Hence, a secondary act of deciding on legal things presupposes and silences problematically another act: the primary act that decisively renders ordinary things, each time, as legal things, as legal names in the first place. That law is a necessary institution is widely accepted, but that life in its totality should be institutionally integrated into legal forms needs to be avoided. To risk a formula of inescapable abstraction, this preliminary questioning serves to interrogate the non-legal being of things in the legal being of things; which implies their difference at the very same time of showing their indistinction in institutional practice. Yet it should be stressed from the start that this is not a claim to some neo-natural ‘real’ or ‘pure’ state of things that we could ‘save’, or some pre-legal substance that could be posed as before/outside/against the law. Instead the task remains to expose such presuppositions of reality as adjacent and internal productions to/of legal operations and to question the negative relation posed between non-legal things and legal things in the process of the ever-increasing juridification of ways of life.

As indicated earlier what is presupposed by this primary distinction is in fact, first of all, the very notion of some thing being-already or becoming a legal thing (res) that the law renders justiciable or determinable in a legal process. How is this becoming of justiciability to be thought? The making of law involves first of all the making of some thing into a legal dispute, a legally relevant dispute, that is as something for which the law is capable to say right generally as well as its right, to speak of right- things as well as of things of right. It is with reference to an ability that precedent first is grounded within a legal system and this capacity is a particular understanding of what it means to act and to act legally, in particular to judge. A reference to an ability of the legal agent, be it a judge or else, refers to an act and its potential ability foremost to not only act (or not act) on some thing, but necessarily to refer itself to itself as its normative justification.

Things in becoming legal things must suffer a sigetic (silencing) transmutation, a parabolic metamorphosis, for the law must cut (decidere) things into legal things in order to be able to operate. The making of legal cases negates, at the same time, a presupposed metaphysical assumption about things ‘as such’ (in the fabricated distinction of (non-juridical) things and legal things), their coming to be (their pseudo-emergence, as ever, from some natural state of unreason, a chaos, a factum brutum) and their legal actualization ‘as’ legal things within a legally governed totality, a legal universe. The intelligibility of the making of cases – and of precedential authority as such – as well as the normativity of case- law is based on the act of stating a right as a binding or persuasive (or both) exclusionary statement in the name, at least in recent modernity, of reason; a particular episode of reason, a legal reason formed itself on the basis of a presupposed ontology of legal discourse: a nomology. A key part of this ontology has come to be known in the ratio decidendi: ‘the rule or principle of decision for which a given precedent is the authoritative source, whether that rule or principle of decision is then to be treated as binding or only as persuasive in some degree for other later deciders of similar questions’ (MacCormick, 1987: 156). Here the silenced act of presupposing the immediate relationship between law and reason (reason itself decides and law is itself reason), is presented through the apparatus of authorial ‘imperatives without imperator’ (reason is not a subject; let alone a responsible or accountable subject) (Schütz, 2009: 233–43).

Questioning precedent

There are many still pertinent questions that can be raised with regard to the making of cases with particular reference to precedential reasoning. As to conceptual questions of precedential thinking we can raise questions in relation to what precedent is held to be, by reference to what precedential thinking is more often said not to be: precedent is not law but the exposition of law; it is almost always a decision but not necessarily so; it is not a hypothetical instance; it is not reasoning from experience; it does not sideline the past but wishes to render it usable in the present; it can set an example but it is not just exemplary; it is neither custom nor a mere necessity; it is not followed simply because it exists; there is a certain element of fiction and not strict legal authority to its binding effect; it is not coercive and it cannot be described as a legal rule and so forth.5

Historically speaking these questions multiply further: take for example a comparison as to what legal reason more generally is between Austin, Hobbes and Coke. Hastily sketched, here, it can be said that for Austin a precedent is not law or good law or even a marginally valid law; for Hobbes it can be law but it is not an authoritative law and for Coke it is the perfection of artificial reason, rather than as in Hobbes the application of natural reason (a reason supposedly shared between the sovereign and his subjects) (Duxbury, 2008: 16–25). But the more interesting historical questions become more poignant in relation to the birth of precedential thinking in the common law and what was largely merely customary practice before its late modern formulation. Common law judges in England, as is well known, have not always resorted to earlier judicial decisions as sources of authority, let alone to written sources or reasoned ones (Ibid.: 25–42). Precedent was conceived in a very different manner as merely evidentiary: precedents could be entered on a plea roll as early as the thirteenth century, as the source of a plea, and litigants and advocates would very occasionally search the rolls for precedents which might help their cause (see Pollock and Maitland, 1968/1898: 183–4). But precedent here was nothing more – and nothing less – than evidence of the law and hence a very different notion to the one perceived today (see Duxbury, 2008: 31–7).

In addition common law operated as customary law long before the introduction of even this notion of precedent as mere evidence of the law; and the oral erudition of the legal profession, the common learning and the constant flux of the evolution of the common law in the minds of the common people was far more important (ibid.). A period of transition and eventually of change took place in the sixteenth century when while common learning as a source of law is still evident in case law, the revival of the special verdict, and an increasing inclination on the part of judges to determine the law by decisions on demurrer and motions after trial meant ‘that courts were more likely to treat earlier decisions as supportive (though not yet determinative) of a particular result, at least where those decisions were followed by reasons’ (Ibid.: 33–4). We also have to note that it is during this period when the emergence of compilations of cases and the increased reliance of lawyers on abridgements led to case law being perceived more and more as a source of some kind of authority (as Coke will say argument drawn from authority is the strongest in law).6 It remains crucial to question from where this ‘strength’ or authorial ‘ability’ is derived.