Infant Carcasses and Judicial Precedent

Precedent is a required competent for our legal system to function. Unlike hyper-legal ramifications of a business-to-business contract, precedent is needed so law can control a society. Legal precedent is based on a concept termed: stare decisis, or stand by what was decided. How the court viewed the law before is how they will interpret the same law in the future. We have to use precedent in our legal system because we don’t want to, “…reinvent the wheel, every time we want to drive our car”. That’s definitely not saying that the judiciary is taking the easy way out, but rather asserting that law is a foundations of common principles and we cannot constantly re-evaluate the whole system with the millions of cases that are pending before the court. Precedent is entrenched into the minds that practice law and live by the law, simply put: The entire American population. Though being ascribed this notion does not, however, guarantee that it is used fairly, or more important to our discussion, justly. 

The concept of precedent can be undermined when lawyers use it to produce synthetic results of case. Their use of both strict and loose precedent often forces a judge to make a political decision rather than a legal one. The judge’s personal political ideology is introduced into the public court. Recalling the essay by Llewellyn, he saw two views of precedent. The strict view, which forced one to keep within the specifics of case and the loose one, were the essence of the precedent is critical and the case details are not. The idea that both sides argue the same precedent differently de-values its foundation. I will attempt to use a hyper-legal, extreme example to illustrate this idea. I am not advocating either side, I am merely constructing an argument within theory.