What is the Law? II

Authors

Joseph W. Bingham, Leland Stanford Jr. University

Abstract

I shall now discuss briefly the nature of the causal effects of precedents upon judicial decisions and the justifications for those effects. One frequently hears laymen scoffing at the respect which courts pay to precedents and sometimes displaying a lamentable ignorance both of the nature of the influence which precedents have on the law and of the reasons for the existence of that influence. The influence of past example on human action pervades all human conduct and endeavor at all times. That influence is fundamental. It occurs through instinctive as well as intelligent processes and sometimes runs to unreasonable extents. This sort of influence, then, is not peculiar to the field of law. Men in business, in social matters, in religion, in scientific pursuits, and in play, follow precedents and learn from precedents. Progress would not continue and human life could not long exist if it were not for the influence which precedent has on thought and instinctive action. Comprehending these facts, let us observe some of the reasons for the influence which precedent has had and does have on the decisions of our courts. Conservatism-human inertia against change-is one cause of this influence, but a cause which has a diminishing potency as the progress of civilization and knowledge goes on. Today its causal effects on judicial decisions, independently of political theory and the other causes of the influence of precedent, is not greater than on other governmental functions.

Recommended Citation

Joseph W. Bingham, What is the Law? II, 11 Mich. L. Rev. 109 (1912).
Available at: https://repository.law.umich.edu/mlr/vol11/iss2/2