Partnering with the Dead to Govern the Unborn: The Value of Precedent in Judicial Reasoning

This chapter canvasses a lengthy menu of arguments for why judges ought to adhere to precedents with which they disagree. Because the author does not share the conservative instincts of those who find precedent of obvious value, the chapter reaches to Edmund Burke’s impassioned defence of legal traditions as an honest means of exploring just what can be said for binding ourselves to rules laid down by the dead, and for binding those who will live long after us by legal innovations designed to serve the needs of the living, not the needs of the still unborn. As the chapter argues, each of the justificatory arguments that we might harvest from Burke’s writings comes at some philosophical cost. The burden of this chapter is to cash out the value of the four categories of defences—conceptual, psychological, moral, and aesthetic—that Burke’s conservatism provides for according precedent a weighty role in judicial decision-making.