More on a Place for Precedent

Years ago I posted here and here about the legitimacy of weighing precedent in constitutional adjudication. Drawing on the work of Jeremy Waldron I observed that "the rule of law is a 'principle that commands judges to work together to articulate, establish, and follow general legal norms.'" My earlier post goes on to address other precedent-related matters but here I wish  to draw some theological support for the place of precedent by quoting Oliver O'Donovan at length from "The Ways of Judgment"

Courts are not wholly dependent on another power of government [i.e., the legislature] for their law. They have the law of God, natural and revealed, and they have the customary law of society. They also have a tradition of interpreting both of these which they themselves have developed by their decisions. ... But since judgment is not a series of separate and discrete decisions but an institution, the law of each case is discerned in relation to the law of the preceding cases. No act of judgment can simply invent law de novo, since that would defeat one of the canons of judgment which is proportion. A law of precedent derived from many cases stands over and behind each new decision. Such a law requires no distinct legislator or statute. Divine law, natural or revealed, and mediated through traditions of right innate in the society, is sufficient to allow courts to develop law by way of their own judgments. (Emphasis added.)

Of course, as I wrote here, precedent can be misguided:

Law in a rule-of-law polity is not of the immutable "law-of-the-Medes-and-Persians" variety. Legislatively enacted laws are often changed. ... So too with judicially crafted law. Per Waldron three or so reasons justify overturning precedent: the rule laid down by the earlier court may have been misconceived because it did not accurately reflect the cognate legal materials from which the earlier judge articulated a universalizable norm. Or the cognate materials may themselves have changed. Or, third, it may be clear to all that the original decision has lead to bad results.

O'Donovan again provides a theological rationale for disregarding the precedent that forms the tradition of judgment of which judicial interpretation is a part:

All legal tradition may need correction from time to time. The obligation of the courts to maintain self-consistency makes them reluctant to innovate, but innovations may be necessary. That may be for either of two reasons: the legal tradition may have may have deviated from natural right; or it may be ill-adapted to the practical possibilities within society. ... [On one hand] there are idealist reforms that attempt to correct our unchecked vices; [on the other hand] there are compromise reforms that make some kind of settlement with them. Either kind of reform may be necessary since acts of judgment must be at once truthful and effective. (Emphasis added.)

The place of precedent in a polity in which common law precedent plays a substantial part is a significant one. Precedent is, as it were, part of the scales that form the balance on which justice is administered. Yet it is justice that the scales measure, not simple consistency.