Men think they may justly do that for which they have a precedent.

THE work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth. Let some intelligent layman ask him to explain: he will not go very far before taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft. Such an excuse may cover with a semblance of respectability an otherwise ignominious retreat. It will hardly serve to still the pricks of curiosity and conscience. In moments of introspection, when there {10} is no longer a necessity of putting off with a show of wisdom the uninitiated interlocutor, the troublesome problem will recur, and press for a solution. What is it that I do when I decide a case? To what sources of information do I appeal for guidance? In what proportions do I permit them to contribute to the result? In what proportions ought they to contribute? If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals? Into that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions. I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life. There, before us, {11} is the brew. Not a judge on the bench but has had a hand in the making.

All bad precedents begin as justifiable measures.

The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day.

The error of those who reason by precedents drawn from antiquity, respecting the rights of man, is that they do not go far enough into antiquity. They do not go the whole way. They stop in some of the intermediate stages of an hundred or a thousand years, and produce what was then done, as a rule for the present day. This is no authority at all. If we travel still farther into antiquity, we shall find a direct contrary opinion and practice prevailing; and if antiquity is to be authority, a thousand such authorities may be produced, successively contradicting each other; but if we proceed on, we shall at last come out right; we shall come to the time when man came from the hand of his Maker. What was he then? Man. Man was his high and only title, and a higher cannot be given him.

Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated...

Strong convictions precede great actions.

The mark of mediocrity is to look for precedent.

Common-Law judges sometimes talk about the law, and schoolmasters talk about the latin tongue, in a way to make their hearers think they mean entities pre-existent to the decisions or the words and syntax, determining them unequivocally and requiring them to obey. But the slightest exercise of reflection makes us see that, instead of being principles of this kind, both law and latin are results. [...] Truth grafts itself on previous truth, modifying it in the process, just as idiom grafts itself on previous idiom, and law on previous law.

in the course of social evolution, usage precedes law; and that when usage has been well established it becomes law by receiving authoritative endorsement and defined form.

I often think the happiest consequences seem to follow when a gentelman consults his lawyer, and takes all the law allows him.

how is a Greek chorus like a lawyer
they’re both in the business of searching for a precedent
finding an analogy
locating a prior example
so as to be able to say
this terrible thing we’re witnessing now is
not unique you know it happened before
or something much like it
we’re not at a loss how to think about this
we’re not without guidance
there is a pattern
we can find an historically parallel case
and file it away under
ANTIGONE BURIED ALIVE FRIDAY AFTERNOON
COMPARE CASE HISTORIES 7, 17 AND 49
now I could dig up those case histories
tell you about Danaos and Lykourgos and the sons of Phineus
people locked up in a room or a cave or their own dark mind
it wouldn’t help you
it doesn’t help me
it’s Friday afternoon
there goes Antigone to be buried alive

The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

Judges do read the newspapers and are affected, not by the weather of the day, as distinguished constitutional law professor Paul Freund once said, but by the climate of the era.