The Tyranny of Precedent

Day 3,452, 15:31 • Published in USA USA • by Gnilraps
Day 3452 of the New World
May 3, 2017





Power is always a responsibility. Those who wield it must know this. There is no power without responsibility.


The questions are these: to whom are the powerful responsible? Can “precedent” usurp justice?






I’ve recently encountered several instances of the unjust and unwise exercise of power by governing bodies. One of them was the body we often refer to as “Plato”. The other was the body we call eUS Congress. What I have to say about the tyranny of precedent directly relates to both governing bodies. In both cases a decision was rendered according to standard protocol. In both cases the decision was to deny an action that was entirely justified. In one case the denial withheld justice from an innocent party. In the other case the denial blocked a very good idea from being implemented.


In both cases, precedent became a tyrant.


Because in both cases, the primary reason for the denial was something called “precedent”.


The wording would go something like this, “If we do XXX (good and wise choice in this particular circumstance) then we will set a precedent for having to do XXX again in the future.”


I call foul.







Precedent is, after all, non-binding.


Precedent is like a mirror. It can only reflect that which already was. Your mirror only shows you what you looked like in the moment just prior to its reflecting light waves back into your eyes.


A mirror cannot predict what will come. Much less, a mirror cannot dictate what will come.


A mirror has no power to change what it reflects. Neither does precedent.







Precedent is something that can be useful to governing bodies in expediting adjudication of like cases. Precedent, by the very definition of the word, is something that has come before… it already exists. So when a case comes that is precisely similar to a previous and already adjucated case, precedent can be invoked to expedite a decision. Precedent does not have to be used, but it can be useful.








There are two ways in which we regularly encounter this idea of precedent. The first sounds like, “We should not do XXX because of precedent.” That discussion would center around the likeness of the circumstances surrounding XXX to the curcumstances surrounding the precedent case. That phrase can and may expedite the decision-making process.


But let us examine the phrase, “We will not do XXX because we do not want to set precedent.”


In this case, the idea of precedent is being invoked as a sort of prophylaxis. It is an exercise of power (or perhaps a refusal to exercise power) based on a fear that the future exercise of power will be bound by the current one. In this case, the only proper invocation of precedent would be if the proposed decision were unjust or unwise (thus as prophylaxis). But even so, precedent does not bind future use of power. Future use of power should be exercised especially if it is to break any precedent set by a prior unjust use of power.


So what if “We will not do XXX because we do not want to set precedent.” is invoked in a circumstance where XXX is actually a just and wise choice? What is going on?


In such as situation as this, the easiest diagnosis is that power is being wielded by the weak. Power is yielding to the tyranny of precedent.


If I am afraid to take a just and wise action because I am afraid that the immediate decision will bind me to future actions, then I stand for neither justice nor wisdom. I am a coward.







But we must remind ourselves that precedent is never binding in a properly organized wielding of power.


Power only exists in a moment. In the case of legislative power - the precise type of power I am referencing above - a governing body is almost always organized to operate as it sees fit. And so deciding XXX in case YYY does not ever bind a power-wielding body to decide XXX in case ZZZ. Ever.


But what if YYY and ZZZ are the same? Precedent merely suggests. At least that is as it should be. Of course in a hyper-egalitarian society, people tend to see all YYY’s and ZZZ’s as the same even when they are not. But even if they were precisely the same, the proper exercise of power in the moment is to decide if precedent should be allowed to dictate the outcome. But that is only the case if we are talking about ZZZ. When the just use of power is set aside in the case of YYY out of fear that it will bind the future use of power, precedent has become tyrranical.


In other words, YYY must be judged based on its merits, totally blind to the possibility of precedent. Otherwise precedent becomes a typological spectre cast backward in time - a boogyman.


What I am saying is that precedent becomes tyrrany when a governing body surrenders its power in the moment due to the unfounded fear of its use in the future.






Let’s try this out on a few examples.


1. “I will not give my disobedient children dessert because it will set a precedent.”

In this example, the decision is being rendered based on the circumstances of the moment. The children have been disobedient and perhaps undeserving of dessert. In this case precedent is not tyrannical. Precedent is being invoked, but in actuality it is the disobedience that is most impacting the use of power.



2. “I will not give my obedient children dessert because it will set a precedent.”

In this example, precedent has become tyrannical. The decision to give dessert is not being adjudicated based on the merits of the matter at hand - the children have not done anything to deny them of dessert - but instead out of fear that the children’s future claim for dessert will overrule the parent’s proper authority to dole it out. Give your children dessert or not. That is your responsibility as dessert-wielders. And if they get it today and not tomorrow - regardless of their merit tomorrow - such is the wielding of power. If you cannot say “no” tomorrow, do not even have children today.



3. “I will (or will not) give my children poison because it will set precedent.”

In this example, the setting of precedent is being falsely invoked. It is wrong to give your children poison today and it will continue to be wrong to give your children poison tomorrow. Justice and wisdom ought always trump precedent. In other words, in this (pair of) example(s), precedent is nothing.







So if you were one of those who were involved in the recent decisions, either in eUS Congress or among the combined brains of “Plato”, in which the fear of precedent was allowed to block otherwise just and wise decisions, shame on you for surrendering your power to the tyranny of precedent. You don’t deserve the power which has been vested in you.






You may now return to your regularly scheduled clicking