newbie question on EPEE's

"Bryan J. Maloney" <cavaggione@sbcglobal.nmungemungt> wrote


> Logically demonstrate that precedent has and ought not have precedence in
> the formation of law.

If precedent were all that mattered, no court would need to present
lengthy explications of their rulings and the reasons for them. It
would be enough to say "Stare decisis, judgement for the appellant".
Law school students would have a lot more time on their hands.

They DO provide lengthy explications of their rulings and the reasons
for them.

Therefore, precedent is not all that matters.

Certainly, judges rely upon precedent. As Churchill writes,

"The policy impels judges to...[solve] new problems by using the
solutions to similar problems reached by judges in the past. The
consequent predictability in judicial decision making increases the
number of legal problems that can be solved outside the courts. the
ability of lawyers to anticipate rulings and inform clients of their
options ultimately depends upon the extent to which the law can be
'known'. When past decisions make the interpretation of rules clear,
and when everyone is convinced of the way a case will turn out, the
disputants usually do not go to court in the first place.

But citizens as well as litigants expect judges to be responsive to
the demands of justice. Thus, when new problems arise OR WHEN CITIZENS
QUESTION THE FAIRNESS OF A RULE, the law takes on a dynamic quality as
judges mold old rules to meet the challenges of new and complex
problems. "

Precedent, in other words, is what emerges from the solving of a
problem through ( one would hope ) logical reasoning. The precedent is
initially the effect of a decision or a series of decisions, not its
cause. It then becomes a PART of the equation in the solving of
subsequent cases. But it is not inviolable and can be changed or even
discarded altogether, or we would still be living with, for instance,
slavery, which at one time had a good deal of precedent on its side.
Nothing new would ever enter the law, and the way things are would be
the way they would always remain.

Thus the duelling question. If all were 'stare decisis', why then was
the mensur once legal in Germany, then illegal, and then legal again?
What precedent informed the earliest laws against duelling, when
before a certain time the practice was completely legal? Was it not
reasoning, logic of some sort, which the first legislation ( and
modifying legal decisions ) applied in order to arrive at the
conclusion that the practice ought to be stopped?

At some point, the legal opinion regarding duelling CHANGED. It
changed as a result of a process of reasoning. That reasoning can be
examined and questioned, or we can never truly understand the why of
it.

I am interested in the why of it, and I do not subscribe to the view
that what is is and need not concern us any further, that the status
quo is immutable and sensible merely because it exists and has
existed.