Precedent and the Semblance of Law

Constitutional Commentary, Vol. 33, p. 417 (2018)

Duke Law School Public Law & Legal Theory Series No. 2018-40

20 Pages Posted: 22 May 2018 Last revised: 13 Nov 2018

Date Written: May 9, 2018

Abstract

Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting judicial culture around a "second-best" stare decisis that leaves incorrect or "badly reasoned" precedents alone. If we can't agree on legal rules, or even on legal theories, at least we can compromise on preserving what our legal institutions have done before.

Though the compromise is well-argued, it may fail to satisfy both sides. On the one hand, if we do still have any constitutional law, this law may take a view on our rules of stare decisis. The second-best theory is openly revisionary, rather than trying to capture our existing legal practice. Its pursuit of stability and impersonality may yield a system that's more law*like* than law*ful* -- a mere semblance of law, the way Kant saw "love of honor and outward propriety" as mere "semblances of morality," sharing only an obedience to "strict laws of conduct for their own sake." On the other hand, if our disagreements really have deprived us of any real law to apply, leaving judges to advance their values as best they can, then there are many other important values to consider. The second-best theory can't tell us where stability and impersonality rank on that list.

Rather than patching up a broken system, we might use Kozel's analysis to illuminate ways of deepening our existing areas of agreement on rules and theories of law. In this project stare decisis might aid us, if we see it as a fallback and not as a foundation-stone--as requiring us to act *as if* a court has decided a case correctly, but not to treat the court's decision as establishing the standard of correctness. Maybe precedent is *supposed* to be a mere semblance; maybe that's its proper role, letting us debate the contours of our actual law without requiring a thousand judicial flip-flops along the way. If so, then expanding our agreement on the law might indeed involve a cultural change: we ought to take the law rather more seriously, and courts and judges rather less so. Once we do, we might find that our world is a lot less lawless than we think.

Keywords: precedent, stare decisis, constitutional law, error theory, semblance, randy kozel, settled versus right, kant

JEL Classification: K1, K10, K4, K40

Suggested Citation

Sachs, Stephen E., Precedent and the Semblance of Law (May 9, 2018). Constitutional Commentary, Vol. 33, p. 417 (2018); Duke Law School Public Law & Legal Theory Series No. 2018-40. Available at SSRN: https://ssrn.com/abstract=3170047

Stephen E. Sachs (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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