In studying Jewish law for a course I taught on legal systems very different from ours, later converted to a book, I came across the story of the oven of Akhnai.
“A judge or law professor is free to argue for his interpretation of the Constitution but once the Justices of the Supreme Court have voted on the subject lower judges are required to rule according to its vote. “
Required in what sense? In other words, what happens if they don’t? Sometimes they get overruled, which they don’t like. But not always. What happens to judges who are loose cannons?
If they are blatantly going against the Supreme Court they (or a variety of other rules) can be impeached or otherwise removed by the other branches of government. And I seem to recall that higher courts can take further action against them, but I don't know the details so take that with a grain of salt.
I am also a fan of Maimonides. He has a good feel for the application of economics to law, as in his discussion of tort damage for injury. Damages for pain and suffering are what the victim would have paid to have the injury done under anaesthetic. Damages for injury are defined by how much, if the victim was a slave, the injury would decrease his market value.
I also enjoy what I interpret as his sense of humor, as in the case of a man who knows he is engaged but not to whom, or the five (?) women having their sons at the same time in a dark place, making it impossible to know which is whose hence which is obliged to marry the widow of another son of one of the women (if I'm remembering it correctly).
A slightly less pleasant interpretation of this story might be as follows:
Just because something is true does not mean people will react productively when they learn it.
One major blind spot of the smart/rational people is their difficulty conceptualizing how us stupid, irrational people think.
A smart person is no doubt irritated by things like lies, fallacies, myths and inaccuracies. But these things are often necessary to direct the behavior of us stupid people in productive or otherwise desirable ways.
To use the biblical phrase from the Talmud we "are not of heaven". When heavenly knowledge mixes with our earthly (i.e. flawed) minds, the result can be abominable.
One example of this occurring is what happened to Karl Marx. He became so disgusted with the way the masses were mutating his ideology that he went on to declare "I am not a Marxist".
I will try to clear up some confusion over my objections to precedent. Probably won't succeed; more likely to introduce new confusion, but what the hey ....
Split appeals court decisions are immoral. The idea that learned judges can spend months arguing over some fine point of law and still not agree, while ordinary people are expected to understand such results instantly, and before the learned judges weigh in months later, is disgusting. I would throw out laws which judges disagree on, and tell the legislators to try again. I would not allow judges to cut out or reform part of the legislation, because legislation is the result of many legislators compromising, with the public chipping in, and for judges to replace all that with their own personal opinions is a travesty.
Precedent, in my understanding, is inferior courts having to follow interpretations established by superior courts, often involving split decisions. I understand the theoretical benefit of avoiding differing verdicts for similar cases, but I disagree that it is good policy. If similar cases in districts A1 and A2 have differing verdicts, precedent rides roughshod over the differences, relying on the superior wisdom and experience of appeals court A. But common law is supposed to rely on judges discovering law by interpolating new law from related law which is nevertheless inexact. When appeals court A establishes precedent, they are in effect telling judges A1 and A2 to stop interpolating to discover that subtle variation. They are also telling all inferior A* judges to stop interpolating, to stop discovering new law, to stop allowing for slight variations.
They are suffocating justice.
This is just the same as socialism. The only way a government can efficiently allocate all resources -- labor, capital, raw materials -- is with a static society, where no one ever retires, dies, gets sick, or is born; where weather and natural disasters never disrupt anything; and where no one ever thinks up a better way to do things, or wants to do anything different.
Both precedent and socialism must freeze the current conditions. Any independent thinking is verboten. Any upset from different conditions throws the whole process into confusion. A landslide blocked a railroad? Oh Noes What Shall We Do? A kid stole a car and returned it intact an hour later? Oh Noes How Can We Shoehorn This Into An Existing Old Law Once Precedent Has Been Set?
Thanks for the side by side comparison of US, Islamic, and Jewish legal thought. I could read about this all day.
I am just curious - do you ever read the original, or do you always use a scholarly translation? The website isn't clear about who wrote it, citing unnamed "scholarly rabbis". Is that as opposed to rabbis who are not scholarly, or do they mean rabbis who engage in academic scholarship?
I view every translation as a commentary, which in legal stories like this one can significantly change the understanding.
"Better that they risk getting the law wrong than that they end up disagreeing in their judgments."
I am of the complete opposite opinion. I detest precedent. Better to continue having dissent and discussion on the path to genuine honest consensus than lock in a possibly wrong answer which precludes further useful discussion, including further proofs that the answer is indeed correct.
"A scholar who disagreed was free to argue for his position ..." is nice words, but meaningless. Without the pressure of having no consensus, and with the pressure of not bucking the system, the current winners have no incentive to continue discussions, and every incentive to stifle it.
Precedent is like socialism: both require and create a static ecosystem, suffocating all progress. I'd rather continue having mixed rulings, encouraging discussion, innovation, and progress towards an honest consensus.
In legal systems, especially those without fast communication or flexible institutions, it is useful to have stability in law, so that people and firms can do more things with less risk over longer time horizons, and personal grievances on the part of judges or charismatic defendants don’t overly skew who is and isn’t subject to the law, producing a random tax and subsidy system.
Or to repeat what I said below, precedence is like socialism, yearning for a quick static solution regardless of whether it works or is correct, instead of wanting a dynamic individualism which moves towards betterment.
I think we are talking past each other. What is the result of consensus building, if not precedent? What is arbitrary fiat, if not the opposite of precedent?
I am discussing precedent which is set by majority rule rather than consensus. Some say majority rule IS consensus; I disagree. Even 8-1 is not consensus; 99-1 doesn't really satisfy me either, unless the holdout is dissenting just to be contrary.
The usual argument is that 8-1 is insignificant; I say if the dissent is that insignificant, then it should be easier for pure argument and discussion to narrow the differences, with compromise from everybody. If compromise is impossible, then the dissent is not insignificant.
I guess a system could end up with something like that, but it hardly seems necessary. Are we even thinking of the same thing when we use the word “precedent”?
When a case is decided, it becomes public knowledge. It would be crazy to treat an identical case as if it were different, or not even mention previous experience. If the dispute gets heard, each side will discuss similar cases, how they were decided, and how to interpret all that in a way that makes sense. What is the alternative? Even if they could not cite previous cases, they could repeat the arguments used. The only genuine alternative seems to make the judge an arbitrary authority who can decide on a whim.
The criticisms I am hearing seem aimed more at bad legislation, which indeed causes contention. It made sense to say that ignorance of the law was no excuse, back when cases were decided on the basis of custom, and not the lengthy and arbitrary whim of legislators. And at least in principle, precedent can be overturned, or a bad precedent can be avoided by contract. Legislation prevents the contract option.
"When a case is decided, it becomes public knowledge. It would be crazy to treat an identical case as if it were different, or not even mention previous experience."
No it is not crazy; what is crazy as taking the first verdict as gospel and all other verdicts as heresy. What if the first two cases had been reversed in time -- would you still take the first (now opposite) verdict as gospel and the second as heresy?
But that implies there can be more than one case, ie, no precedent. If you always stop after the most recent case, then because the first case is the most recent once decided, it precludes further cases.
That's the same principle -- better to lock in a lousy decision that not everyone agrees with, than work towards a better one that has true consensus.
I do understand the idea that bad predictable stability is better than dynamic consensus building which leaves everyone in doubt in the meantime. But it's a short-term outlook, and it annoys me that its proponents don't recognize that.
It works well when the difference is minuscule, or a decision must be reached quickly, or the lawmakers’ time is valuable, even when taking a long-term outlook. See also: solutions to n-armed bandit problems. We got stuck on those for a very long time because one assumed property of a general solution was that it should arrive on the best arm with certainty in the long run, but actually much of the time a sub-optimal arm is reached when executing an optimal solution!
How can the differences be both minuscule and non-consensual? They can be only one or the other; by definition, a non-consensual difference, which can not be negotiated away or discussed until is no longer a difference, is significant.
Any why should legislators of all people be given a bye on doing hard work? You are just kicking the can down the road, making judges do the legislators' job. Why not just fire the legislators and leave it to judges?
I can't think of a job I've had or a problem I've worked on that would have been worth paying me if I could have palmed it off on somebody else because it was too hard for me.
If consensus settles on a pessimal solution, it's more likely to have reached the trough of the incorrect valley, compared to never searching for the valley and being stuck on the even more pessimal side above the trough.
You are assuming that there always is a right answer. Given the ambiguity of both language and reality, there can be cases where there isn't, where a case reveals that two different answers are both consistent with the law. In such a situation you need some mechanism to decide which answer will apply to future cases.
Do you also feel that court cases should never have a final decision, that if I sue and lose, or am charged with a crime and convicted, I should be permitted to have the case retried again and again? It feels like the same issue.
No, I do not assume there is always a right decision, or even that a right decision can be reached. I assume that if the goal is to be right more often than not, that precedent is less likely to reach right decisions than consensus, because precedent blocks all further search for right decisions.
Individual cases, should only be reopened for fresh evidence. But desiring finality in individual cases is not the same as desiring premature finality in all cases.
How is an honest consensus different from precedent?
Once an issue has arisen and been settled correctly, shouldn’t people expect similar disputes to be settled similarly? The alternative is that similar circumstances should lead to active disputes every time, and be settled differently, and disputants treated differently in arbitrary ways.
The issue seems not to be precedent versus something else but how do we know which precedent applies, or none. If there are errors in previous decisions (and there must be), there has to be a way to detect and correct them. And if there is a society of persons cooperating, they have to have a workable way of knowing when they are stepping out of line.
You aren't consistent yourself. You say "has been settled correctly" but how do you know it's correct if it's a split decision? If similar situations still result in differing decisions, how do you know which ones are "correct"? How much of a majority constitutes consensus? 5-4 isn't consensus. I don't even like 8-1 -- if a lone holdout feels that strongly about it, consensus has not been achieved.
Jury trials must be unanimous, yet appeals courts spend hours listening to oral arguments, months discussing and arguing and studying the matter, and still come up with split 1-2 or 5-4 decisions; and then ordinary people are expected to make instant life or death decisions over the same matter. How is that justice?
Consensus is voluntary agreement. As long as there is dissent, there is no consensus. 99-1? I might go for that. 8-1 after months of discussion and study? No.
Yes, they do. But if the goal is consensus, precedent cuts the process short before it can reach consensus. If the goal is perfection, then it will never be reached.
Before an issue is settled, precedents are of great importance. If it is never properly settled, they remain important. If ever it is settled, precedent distills the essence of that process. The only situation where a precedent would become irrelevant would be if people unanimously decided it had been made in error. And then a new (perhaps better) precedent would take its place.
What is the alternative to precedent, other than arbitrary fiat?
These criticisms frame the situation as if precedent was never overturned, surpassed, ignored or supplanted by contract. The law must be interpreted. Those who do so can try to remain within the norms and customs or their society, or can ignore them. Ignoring them seems inefficient at best and a recipe for disaster, or an abuse of power, at worst.
"Before an issue is settled, precedents are of great importance."
How can you have precedent without being settled? Precedents ARE the settlement. You may as well have final cases followed by really final cases, and I-mean-it-this-time final cases.
Typos in the footnote.
Should be "Mishneh" not "Mishnah" and "Yesodei" not "Tesodei."
“A judge or law professor is free to argue for his interpretation of the Constitution but once the Justices of the Supreme Court have voted on the subject lower judges are required to rule according to its vote. “
Required in what sense? In other words, what happens if they don’t? Sometimes they get overruled, which they don’t like. But not always. What happens to judges who are loose cannons?
If they are blatantly going against the Supreme Court they (or a variety of other rules) can be impeached or otherwise removed by the other branches of government. And I seem to recall that higher courts can take further action against them, but I don't know the details so take that with a grain of salt.
Excellent post
I like just about anything that cites Maimonides. Some very rabbinical arguments here or I suppose Christians would call them Jesuitical.
I am also a fan of Maimonides. He has a good feel for the application of economics to law, as in his discussion of tort damage for injury. Damages for pain and suffering are what the victim would have paid to have the injury done under anaesthetic. Damages for injury are defined by how much, if the victim was a slave, the injury would decrease his market value.
I also enjoy what I interpret as his sense of humor, as in the case of a man who knows he is engaged but not to whom, or the five (?) women having their sons at the same time in a dark place, making it impossible to know which is whose hence which is obliged to marry the widow of another son of one of the women (if I'm remembering it correctly).
A slightly less pleasant interpretation of this story might be as follows:
Just because something is true does not mean people will react productively when they learn it.
One major blind spot of the smart/rational people is their difficulty conceptualizing how us stupid, irrational people think.
A smart person is no doubt irritated by things like lies, fallacies, myths and inaccuracies. But these things are often necessary to direct the behavior of us stupid people in productive or otherwise desirable ways.
To use the biblical phrase from the Talmud we "are not of heaven". When heavenly knowledge mixes with our earthly (i.e. flawed) minds, the result can be abominable.
One example of this occurring is what happened to Karl Marx. He became so disgusted with the way the masses were mutating his ideology that he went on to declare "I am not a Marxist".
I will try to clear up some confusion over my objections to precedent. Probably won't succeed; more likely to introduce new confusion, but what the hey ....
Split appeals court decisions are immoral. The idea that learned judges can spend months arguing over some fine point of law and still not agree, while ordinary people are expected to understand such results instantly, and before the learned judges weigh in months later, is disgusting. I would throw out laws which judges disagree on, and tell the legislators to try again. I would not allow judges to cut out or reform part of the legislation, because legislation is the result of many legislators compromising, with the public chipping in, and for judges to replace all that with their own personal opinions is a travesty.
Precedent, in my understanding, is inferior courts having to follow interpretations established by superior courts, often involving split decisions. I understand the theoretical benefit of avoiding differing verdicts for similar cases, but I disagree that it is good policy. If similar cases in districts A1 and A2 have differing verdicts, precedent rides roughshod over the differences, relying on the superior wisdom and experience of appeals court A. But common law is supposed to rely on judges discovering law by interpolating new law from related law which is nevertheless inexact. When appeals court A establishes precedent, they are in effect telling judges A1 and A2 to stop interpolating to discover that subtle variation. They are also telling all inferior A* judges to stop interpolating, to stop discovering new law, to stop allowing for slight variations.
They are suffocating justice.
This is just the same as socialism. The only way a government can efficiently allocate all resources -- labor, capital, raw materials -- is with a static society, where no one ever retires, dies, gets sick, or is born; where weather and natural disasters never disrupt anything; and where no one ever thinks up a better way to do things, or wants to do anything different.
Both precedent and socialism must freeze the current conditions. Any independent thinking is verboten. Any upset from different conditions throws the whole process into confusion. A landslide blocked a railroad? Oh Noes What Shall We Do? A kid stole a car and returned it intact an hour later? Oh Noes How Can We Shoehorn This Into An Existing Old Law Once Precedent Has Been Set?
Thanks for the side by side comparison of US, Islamic, and Jewish legal thought. I could read about this all day.
I am just curious - do you ever read the original, or do you always use a scholarly translation? The website isn't clear about who wrote it, citing unnamed "scholarly rabbis". Is that as opposed to rabbis who are not scholarly, or do they mean rabbis who engage in academic scholarship?
I view every translation as a commentary, which in legal stories like this one can significantly change the understanding.
I don't read either Hebrew or Arabic, unfortunately, so am dependent on translations.
"Better that they risk getting the law wrong than that they end up disagreeing in their judgments."
I am of the complete opposite opinion. I detest precedent. Better to continue having dissent and discussion on the path to genuine honest consensus than lock in a possibly wrong answer which precludes further useful discussion, including further proofs that the answer is indeed correct.
"A scholar who disagreed was free to argue for his position ..." is nice words, but meaningless. Without the pressure of having no consensus, and with the pressure of not bucking the system, the current winners have no incentive to continue discussions, and every incentive to stifle it.
Precedent is like socialism: both require and create a static ecosystem, suffocating all progress. I'd rather continue having mixed rulings, encouraging discussion, innovation, and progress towards an honest consensus.
In legal systems, especially those without fast communication or flexible institutions, it is useful to have stability in law, so that people and firms can do more things with less risk over longer time horizons, and personal grievances on the part of judges or charismatic defendants don’t overly skew who is and isn’t subject to the law, producing a random tax and subsidy system.
Or to repeat what I said below, precedence is like socialism, yearning for a quick static solution regardless of whether it works or is correct, instead of wanting a dynamic individualism which moves towards betterment.
I think we are talking past each other. What is the result of consensus building, if not precedent? What is arbitrary fiat, if not the opposite of precedent?
I am discussing precedent which is set by majority rule rather than consensus. Some say majority rule IS consensus; I disagree. Even 8-1 is not consensus; 99-1 doesn't really satisfy me either, unless the holdout is dissenting just to be contrary.
The usual argument is that 8-1 is insignificant; I say if the dissent is that insignificant, then it should be easier for pure argument and discussion to narrow the differences, with compromise from everybody. If compromise is impossible, then the dissent is not insignificant.
I guess a system could end up with something like that, but it hardly seems necessary. Are we even thinking of the same thing when we use the word “precedent”?
When a case is decided, it becomes public knowledge. It would be crazy to treat an identical case as if it were different, or not even mention previous experience. If the dispute gets heard, each side will discuss similar cases, how they were decided, and how to interpret all that in a way that makes sense. What is the alternative? Even if they could not cite previous cases, they could repeat the arguments used. The only genuine alternative seems to make the judge an arbitrary authority who can decide on a whim.
The criticisms I am hearing seem aimed more at bad legislation, which indeed causes contention. It made sense to say that ignorance of the law was no excuse, back when cases were decided on the basis of custom, and not the lengthy and arbitrary whim of legislators. And at least in principle, precedent can be overturned, or a bad precedent can be avoided by contract. Legislation prevents the contract option.
"When a case is decided, it becomes public knowledge. It would be crazy to treat an identical case as if it were different, or not even mention previous experience."
No it is not crazy; what is crazy as taking the first verdict as gospel and all other verdicts as heresy. What if the first two cases had been reversed in time -- would you still take the first (now opposite) verdict as gospel and the second as heresy?
The rule in Rabbinic law is that the law is according to the judgement of the most recent scholar.
But that implies there can be more than one case, ie, no precedent. If you always stop after the most recent case, then because the first case is the most recent once decided, it precludes further cases.
That's the same principle -- better to lock in a lousy decision that not everyone agrees with, than work towards a better one that has true consensus.
I do understand the idea that bad predictable stability is better than dynamic consensus building which leaves everyone in doubt in the meantime. But it's a short-term outlook, and it annoys me that its proponents don't recognize that.
It works well when the difference is minuscule, or a decision must be reached quickly, or the lawmakers’ time is valuable, even when taking a long-term outlook. See also: solutions to n-armed bandit problems. We got stuck on those for a very long time because one assumed property of a general solution was that it should arrive on the best arm with certainty in the long run, but actually much of the time a sub-optimal arm is reached when executing an optimal solution!
How can the differences be both minuscule and non-consensual? They can be only one or the other; by definition, a non-consensual difference, which can not be negotiated away or discussed until is no longer a difference, is significant.
Any why should legislators of all people be given a bye on doing hard work? You are just kicking the can down the road, making judges do the legislators' job. Why not just fire the legislators and leave it to judges?
I can't think of a job I've had or a problem I've worked on that would have been worth paying me if I could have palmed it off on somebody else because it was too hard for me.
If consensus settles on a pessimal solution, it's more likely to have reached the trough of the incorrect valley, compared to never searching for the valley and being stuck on the even more pessimal side above the trough.
You are assuming that there always is a right answer. Given the ambiguity of both language and reality, there can be cases where there isn't, where a case reveals that two different answers are both consistent with the law. In such a situation you need some mechanism to decide which answer will apply to future cases.
Do you also feel that court cases should never have a final decision, that if I sue and lose, or am charged with a crime and convicted, I should be permitted to have the case retried again and again? It feels like the same issue.
No, I do not assume there is always a right decision, or even that a right decision can be reached. I assume that if the goal is to be right more often than not, that precedent is less likely to reach right decisions than consensus, because precedent blocks all further search for right decisions.
Individual cases, should only be reopened for fresh evidence. But desiring finality in individual cases is not the same as desiring premature finality in all cases.
How is an honest consensus different from precedent?
Once an issue has arisen and been settled correctly, shouldn’t people expect similar disputes to be settled similarly? The alternative is that similar circumstances should lead to active disputes every time, and be settled differently, and disputants treated differently in arbitrary ways.
The issue seems not to be precedent versus something else but how do we know which precedent applies, or none. If there are errors in previous decisions (and there must be), there has to be a way to detect and correct them. And if there is a society of persons cooperating, they have to have a workable way of knowing when they are stepping out of line.
You aren't consistent yourself. You say "has been settled correctly" but how do you know it's correct if it's a split decision? If similar situations still result in differing decisions, how do you know which ones are "correct"? How much of a majority constitutes consensus? 5-4 isn't consensus. I don't even like 8-1 -- if a lone holdout feels that strongly about it, consensus has not been achieved.
Jury trials must be unanimous, yet appeals courts spend hours listening to oral arguments, months discussing and arguing and studying the matter, and still come up with split 1-2 or 5-4 decisions; and then ordinary people are expected to make instant life or death decisions over the same matter. How is that justice?
Consensus is voluntary agreement. As long as there is dissent, there is no consensus. 99-1? I might go for that. 8-1 after months of discussion and study? No.
"but how do you know it's correct if it's a split decision?"
How do you know if it's correct if it is a unanimous decision? Unanimous jury verdicts sometimes turn out to have convicted the wrong person.
Yes, they do. But if the goal is consensus, precedent cuts the process short before it can reach consensus. If the goal is perfection, then it will never be reached.
Before an issue is settled, precedents are of great importance. If it is never properly settled, they remain important. If ever it is settled, precedent distills the essence of that process. The only situation where a precedent would become irrelevant would be if people unanimously decided it had been made in error. And then a new (perhaps better) precedent would take its place.
What is the alternative to precedent, other than arbitrary fiat?
These criticisms frame the situation as if precedent was never overturned, surpassed, ignored or supplanted by contract. The law must be interpreted. Those who do so can try to remain within the norms and customs or their society, or can ignore them. Ignoring them seems inefficient at best and a recipe for disaster, or an abuse of power, at worst.
"Before an issue is settled, precedents are of great importance."
How can you have precedent without being settled? Precedents ARE the settlement. You may as well have final cases followed by really final cases, and I-mean-it-this-time final cases.