The Power of Precedent

The Power of Precedent

In 1894 Sam Walter Foss composed an allegory in verse. It begins centuries ago with a calf wobbling through the woods, making a crooked trail. A dog and then a sheep followed, making the trail a path. Men followed too, and it became, by turns, a road, a village street, and a crowded thoroughfare. The final stanzas are as follows:

Each day a hundred thousand rout / Followed this zigzag calf about / And o’er his crooked journey went / The traffic of a continent. / A hundred thousand men were led / By one calf near three centuries dead.

They followed still his crooked way, / And lost one hundred years a day; / For thus such reverence is lent
 / To well-established precedent.

This simple allegory illustrates the tremendous power that precedent exerts over our lives. The key word in the final couplet is “reverence.” Foss was not attacking precedent, just the extreme deference to it that thwarts progress. In many cases, precedent is a helpful, even essential guide to thought and action.

So when does precedent become a hindrance?

When we assume that the way ideas, systems, and institutions are is the way they are supposed to be. This assumption goes far beyond leaving well enough alone or refraining from fixing what isn’t broken. (Those are reasonable reminders of the need for discernment.) No, this assumption ignores the role that accident, coincidence, and/or imperfect judgment may have played in making things as they are.

When we assume that changing ideas, systems, and institutions dishonors those who invented or discovered them. This assumption ignores both human imperfection and the transience of achievement. Even the most brilliant and creative human beings are constrained by the knowledge limitations of their time; increasing knowledge produces new insights that necessitate revision or replacement of earlier achievements.

Archimedes was among the greatest mathematicians and scientists of the ancient world. But his knowledge was far more limited than that of his modern counterparts. Ptolemy’s understanding of the solar system was not only less refined than that of Copernicus and Galileo—it was mistaken. Galen’s achievements in medicine were surpassed by those of Joseph Priestley and Louis Pasteur. But these realities in no way diminish the achievements of Archimedes, Ptolemy, and Galen.

We honor great achievers by recognizing the contribution they made at their particular moments in time and by building on their contributions, even when that entails refuting some of their judgments. To pretend they were right when the passing of time has proved them wrong not only retards progress—it also dishonors them.

Both assumptions have in common the view that precedent and its offspring tradition are sacrosanct and should never be questioned. That view has done enormous harm wherever it has been embraced. Here are a few examples:

In education, mind stuffing (giving students facts to remember) has remained the standard teaching method for more than a century, despite voluminous evidence that mind building (teaching students how to solve problems and make judgments) is much more effective. Those in charge of education continue to cling to the view that if the inferior method was good enough for their predecessors, it should be good enough for them.

In medicine, Ignaz Semmelweis was scorned and ridiculed when he presented evidence that doctors’ failure to wash their hands after touching the dead was causing fatal illness among their living patients. The other doctors refused to believe that their centuries-old practice could possibly be harmful.

In law, the principle of stare decisis obligates the courts to follow the precedents established by prior decisions. As a general guide, this principle is not just defensible but indispensable. Nevertheless, when jurists go beyond respecting it and hold it in reverence, they lose their ability to discern and correct errors in earlier precedents. Thus, rather than serving justice, they may perpetuate injustice.

In government, for several generations, elected officials have spent monumental sums of money on a “war on poverty” that largely failed and in some cases undermined people’s motivation to improve their condition. Yet the present generation of officials ignores the facts and seeks to spend more money on the failed programs simply because the precedent was based on a noble intention. Their slavishness to this idea prevents them from realizing that the good intention would be better served by different, more effective programs.

In business, for over a century, the notion that only executives and managers are capable of analysis and creativity has deprived American companies of employees’ problem solving abilities. Business leaders continued to embrace this notion even after Edwards Deming demonstrated that it was false. Only when his quality control ideas vaulted Japanese industry to world leadership, did American executives begin to listen. But even then most could not bring themselves to abandon their predecessors’ practice of “top down” management, reasoning (pathetically) that “our predecessors wouldn’t have adopted the practice if it weren’t sound” and “the fact that we hold higher positions than our subordinates proves that we are superior thinkers.”

In religion, reverence for precedents has been especially strong because it is intertwined with the concept of sacredness. Religious teachings are regarded as deriving from the will of God, as interpreted by theologians and priests/pastors anointed to perform that task. When the precedents have been reinforced over time, the focus on the “will of God” tends to overshadow the fact of human interpretation. When that happens, challenging a religious teaching may seem to challenge God. As a result, errors in theological reasoning can go uncorrected for centuries. That was the case with Catholic teachings on usury, religious liberty, geocentrism, and slavery. According to some Muslim scholars, it continues to be the case with the Islamic teaching on religious tolerance.

How then should we regard precedents and traditions? As past efforts to achieve wisdom in human affairs. Seeing our predecessors’ common goal as wisdom reminds us to respect and honor them. Seeing their strivings as efforts reminds us that human limitations may have prevented them from achieving their goal.

In practical terms, this means neither mindlessly embracing nor mindlessly rejecting precedents and traditions, but instead examining them thoughtfully and deciding whether they deserve our support. Every human agency and institution would benefit greatly from this approach.

Copyright © 2015 by Vincent Ryan Ruggiero. All rights reserved

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Vincent Ryan Ruggiero