Precedent, Policy, and Principle in Objectivist Moral Reasoning

In law, there are basically three forms of arguments to settle an issue before the court. You can argue from precedent, from policy, or from principle. Briefly, precedent appeals to past cases. Policy appeals to consequences. And principle appeals to guidelines or rules.

I see these three argument forms pop up at different times in moral arguments in Objectivism. I'm wondering what people's thoughts are on (a) whether it works in Objectivist moral reasoning to categorize these forms of arguments as such (if not why not, and then how else?), (b) whether these forms of arguments are all fair game in Objectivist moral arguing (if at times not, then why not?), and (c) whether there are clear instances where you should choose to use one before the others and why.

Jordan

Post 1

Saturday, January 17, 2009 - 1:50pm

Jordan, thank you for this post.

Here at RoR, we are often deriding this or that law... and with good reason. But the other side of the coin is that much of the law (those that protect our rights and the fundamental philosophy of law) are the product of a long period of intelligence applied to securing justice. And examining some of this reasoning for parallels between law and ethics, and using principles of law as intellectual levers to pry open new understandings in ethics, is something I find delightful.

Precedent isn't just a heavy weight of "we did this before so we should do it again" - but rather a fleshing out of different applications - a chewing on the details of applying a principle. Usually each of the cited cases is an example of why it is reasonable to apply principle x to circumstance y. It deepens and tests our understanding of the principles.

A new precedent is set with reference to policy and/or principle as the justification. Hopefully both since we Objectivists believe that the practical and the principled don't conflict. I would note that if the weight of the new opinion is heavy on policy I'd get suspicious and sniff about to see if a bad principle is being smuggled in without being explicitly named. I like that 'tradition' (precedent) is lower on the scale of things than principle.

I believe that cultural evolution produced various moral precepts (see Jane Jacobs' Systems of Survival) and that they are good material to examine as we consciously replace the products of that lower-level of thinking with our consciously identified and implemented moral code. Hence its a good idea to look at 'precedent,' but for ideas, not for a standard.

When policy (the practical) and principle are presented as conflicting it is a good signal to go back and examine one's premises.

As is always the case, the more conscious, the more aware one is of the form of their argument, the more accurate and effective they are likely to be. I think that all of these modes of thought can be applied to Objectivist ethics, but they need to be identified to carry weight and to avoid a misapplication.

Thought is hierarchical - and there are levels of abstraction in each of these three modes of thought. For example, we here all share the precedent of reason and logic as means of identifying the truth. We don't have to argue that point fresh each time (except in the Dissent area, where some idiot is trying overturn that precedent). At a less abstract level we have a precedent for individual rights as a foundation for proper political purpose, and so forth. In this sense, we are already using all of these modes of thought in Objectivist ethics. When we quote Rand we are implying precedent, and when we agree on an error in her thought (e.g., homosexuality), we have overthrown a precedent based upon principle, and established a new precedent.

Post 2

Saturday, January 17, 2009 - 2:53pm

I agree with Steve's observation that precedents should be application of fundamental principles to specific circumstances, but from my layman's vantage point with news filtered through the media, it has been my conclusion that there are many cases of precedent that exist that do not necessarily meet this criteria.

Jordan, as a lawyer who has a deep familiarity for the law, what is your take on this? Is most case law built upon a foundation that explicitly identifies the appropriate application of the fundamental laws involved and do the citing of precedents in newer cases result in bringing those principles to the forefront?

And going a step further, what is your opinion about how well laws, especially new legislation during the 20th century, has been grounded in an explicit articulation of basic principle. It seems, again from my vantage point, that today, the formation of law is not tied to any principles and that almost anything goes.

Regards,
--
Jeff

Post 3

Saturday, January 17, 2009 - 9:01pm

I'm not a lawyer, but have a problem with the unbridled adoption of "case law". For my money, each law should have embedded in its language the specific intent it was enacted to govern. While case law is highly effective in getting felons off the street, new laws should quickly follow to replace case law with more carefully worded and clearer terms focussing on the facts of the newly recognized circumstance.

Case law is grossly abused and dangerous, in my humble opinion.

jt
(Edited by Jay Abbott on 1/17, 9:02pm)

Post 4

Sunday, January 18, 2009 - 1:01am

Jay:

You assessment of case law or precedents is also my general view, but I'm not qualified to really pass judgment on how the legal system actually works. That's why I'm hoping that Jordan can shed some light on the subject.

I agree with you that every legal judgment as well as every piece of legislation should have to state explicitly the principle upon which it rests and the manner in which that principle is being executed. I would love to see the explicit justification put forth for social security or national health care. If we are going to die by the sword, I would like to at least see its true nature be identified and acknowledged.

Regards,
--
Jeff

Post 5

Sunday, January 18, 2009 - 10:57am

Steve, good post.

Jeff, good questions and not entirely easy to answer. Let me know if I don't address something here. I'd say it's primarily the job of lawmaking bodies (e.g., legislatures and regulatory bodies) to articulate fundamental principles. So in the spirit of judicial restraint and the separation of powers, courts tend to refrain from imputing fundamentals. Indeed, in many circumstances they can't consider fundamentals because no question of whether a law is fundamentally sound is presented as an issue, and courts are reluctant to introduce such issues sui generis. The big exception is where we're dealing with old and top-tier laws such as constitutions or treaties. Then the courts weigh in with fundamentals, and I think they do this quite well.

Lawmaking bodies are pretty good at articulating the purpose of whatever law they are trying to pass. They usually have findings and introductions espousing this or that purpose. But I can't say lawmaking bodies do a great job of drawing a law's purpose to a fundamental principle. Laws to pass are usually reactionary; they respond to some immediate issue. It's almost always trees; rarely forest. The laws might accord with fundamentals, but the fundamentals tend to hide in obscurity as background noise.

Back to courts. Rarely do I see case law relied upon unbridledly. Case law serves consistency, expediency, and predictability. A seminal case usually does the heavy lifting of gleaning a lawmaker's intent and authority. There's little sense in reinventing that wheel. (Wasn't sure where to put that bit.)

Interestingly, I wonder if perhaps you and Jay might prefer civil law (as opposed to common law) tradition and jurisprudence, which is the world's dominant mode of law. Precedent is nearly non-existent in the civil law tradition. Civil law countries presume that their codes of law are complete, exhaustive, and consistent. As such, their courts claim merely to apply the law, rarely to interpret it. They do not fill gaps in the law. They do not expose hidden rights. When occasionally these courts need to understand what a law means, rather than looking at past cases, they look to jurists (usually venerated academics) through a basic grid of "general principles."

I prefer common law to civil law jurisprudence. Common law is immediately responsive to conflict. It provides a mechanism for resolution where a wayward or lax lawmaking body has failed to speak or has spoken in jarbled mumbles. Lawmaking bodies can also overturn a court's opinion, so it can be a tough question who to get ticked at when a bad opinion stays on the books -- the courts or the lawmakers? I'm at the risk of rambling here, so I'll leave it at that.

Again, let me know if I addressed your questions.

Jordan

Post 6

Sunday, January 18, 2009 - 11:36am

Jordan,

I don't question that the flexibility of case law can do good. I'm only concerned that same flexibility can equally do harm- e.g. create 'rights' where none do or should exist. As technology and human understanding of philosophy and rights grows, many issues not addressed, perhaps that never existed for past jurisprudence to examine, demand intelligent and fair attention. Case law, as you state may be consistent, expedient, and predictable, but it is still, I think, a slap-dash approach. As new circumstances become understood, such case law should be regularly replaced by carefully worded specific laws - i.e. there should be a expiry date, where new laws replace the de-facto, stitched together case law.

I'm not pretending to think this would be so simple a task, or not take up much time, but I still think it'd add much more clarity and fairness to the justice system.

jt

Post 7

Sunday, January 18, 2009 - 11:38am

I'm confused about common law and civil law jurisprudence, Jordan. These are two modes of arguing for a certain result? Would they both regard policy, precedent, and principle, but weight them differently? Does our legal system formally recognize common law and/or civil law jurisprudence? If common law backs one result, but civil law the opposite, what happens?
I hope you're in the mood to lecture!

Post 8

Sunday, January 18, 2009 - 5:52pm

Hi Jay,

I'm only concerned that same flexibility can equally do harm- e.g. create 'rights' where none do or should exist.

That's definitely a risk with our common law. I'd rather give the courts this flexibility and�leave the�legislature to remedy their pitfalls, rather than bind the courts' hands and leave grievances unredressed.

Hi Mindy,

I love explaining law topics, so ask away anytime. Across the glob[e], there are different legal traditions, i.e., ways governments -- and courts in particular --�redress grievances.�The�world's dominant legal tradition is the civil law tradition, handed down from Roman law, the Justinian Code, and�later the Germanic and Napoleanic Codes. Civil law seldomly considers precedent, and there're several reasons for this. The most basic reason�is the idea that each court should be autonomous, free to apply the law on its own without the constraints of what other courts might think on the matter. (I think this might come from Montesquieu, but don't quote me on it.)�Because these�courts don't�much care about each other's decisions, they don't have much in the way of court�records, elongated opinions, or case law volumes.� Civil law courts do not look at policy. That falls to the lawmaking bodies. But the civil law courts do consider�principle.�And�as I understand it, I�think it was around the Enlightenment that Natural Law co-opted the civil law tradition, and through Natural Law these over-arching "general principles" emerged. "General principles" are sort of a fixed underlying grid that civil law courts appeal to when applying this or that code or treaty.

Common law is quite different and relatively rare. The United States got it from Old England, and you can find it usually wherever Old England�had a strong presence, e.g., The United States, Ireland, England, Wales, New Zealand, Australia.�Common law is most easily understood as�judge-made law. Common law judges will fill gaps in laws and stretch or shrink laws to or from novel circumstances. Contrast this with civil law courts, which leave grievances unredressed in�non liquet (i.e., where no law clearly�speaks to the issue). Common law courts do their business by relying heavily on�precedent. Lower courts are bound by higher courts' decisions. Custom and tradition play a big role.�Common law courts, like civil law courts,�tend to ignore policy. Like the civil law courts, they�leave policy�to the�lawmaking bodies.� And I discussed common law's application of principle in my last post.

Please note,�Our common law tradition is often divided into two fields: civil and criminal. Do not confuse the "civil law" field of common law with the "civil law" tradition practiced in say Germany or France.� They are entirely different. Moving on...

The common law�/ civil law tradition distinction�explains why cases in foreign countries often baffle U.S. citizens or why their�legal systems befuddle us.��Adjudicating grievances abroad is wildly different. There aren't juries. There are�almost never�punitive damages. Attorneys fees don't shift to the responsibility of the losing party, so civil law societies are much less litigious. There's little to no discovery, so litigation is cheaper.�Law degrees are just�undergrad degrees (sometimes earned in just 2 years),�so it's not that prestigious to be a foreign trial court judge. Even stranger,�judges usually collect the facts of a case on�their own. They�even often act as a prosecutor.�And to repeat: our tradition is the minority!

Did I answer your questions?
Jordan

(Edited by Jordan on 1/18, 8:59pm)

Post 9

Sunday, January 18, 2009 - 7:10pm

Jordan, Excellent post! I love that stuff.

I think the great advantage of the common law system lies in the precedents. Everyone pursues their interests in the adversarial system which makes for very searching and robust scrutiny of the details of a case and how to fit them to the relevant principle. It results in the finest details of the application of a principle being discovered and then added to the body of law - it is cultural evolution at work honing and refining the application of the law. The details that lie in precedent, with the passing of time, allow us to know with ever greater certainty what future rulings will be (when the court isn't being activist, which is a different story.)

Post 10

Sunday, January 18, 2009 - 7:32pm

Jordan:

Thank you very much for providing all of these details regarding the legal system. I find it all fascinating, although I'm still not sure where I come down on matters being presented. However, I am rereading what you have written and considering it all further.

Regards,
--
Jeff

Post 11

Sunday, January 18, 2009 - 8:17pm

Jordan,
Thanks for that introduction to law across the glob!
The U.S. has a common-law system, which relies chiefly on principle and precedent. Is that right?
In your original post, you had principle, precedent, and policy as three forms of argument used to settle a case before a court. Policy, however, is influential only when law-makers are deciding on new legislation?

Mindy

Post 12

Sunday, January 18, 2009 - 9:26pm

Glob! Aw poop. Typos. But good for a laugh, no? Thanks, Mindy.

To answer your question, policy does fall generally within the law-makers' province. I suppose I should say that policy and principle do come up in other ways before the court, usually pertaining to issues of a more procedural and administrative nature. The court relies heavily on *principles* to guide it on statutory interpretation, contract interpretation, and choice of law. The court relies heavily on *policy* when setting its own rules. It considers the consequences that rules have on administrative costs, expediency, and accuracy.

Jordan
(Edited by Jordan on 1/18, 9:30pm)

Post 13

Sunday, January 18, 2009 - 9:36pm

Thanks very much, Jordan. The reason foreign courts seem so odd is particularly useful. I owe you one.

Post 14

Sunday, January 18, 2009 - 9:46pm

Sure thing, Mindy.

Hey Steve, Thanks. Precedents - indeed!

I'd still like to see more thoughts about these kinds of arguments within Objectivist moral reasoning.

Jordan

Post 15

Sunday, January 18, 2009 - 9:57pm

Do you mean formulating ethical principles--philosophizing, or the sort of thinking that goes into making particular decisions about what's right?

Post 16

Monday, January 19, 2009 - 10:12am

The latter, although I'm not sure I understand your bifurcation.

Jordan

Post 17

Monday, January 19, 2009 - 11:33am

Regarding reasoning in general, using precedents to ennunciate a rule is much like induction.
The role of principle is obvious.
Policy, I think, is a top-down kind of thinking, where membership in a category somewhat higher up in the hierarchy of knowledge is referred to in order to settle a question at that lower level.

Regarding individual moral choices, precedents are very useful to work out why a similar, previous choice--presumably thought to be sound--belonged in the category of what is morally right, and, through extension, to indicate that this choice does (or doesn't,) also. (Like, "We loaned money to your sister, how can we refuse to loan it to your brother?") I think we all do this very often, with the difficult part being sorting out the differences between past cases and the present one, (like, "Yes, but she doesn't hop from job to job, with long periods of inactivity between,") and judging whether or not those differences make a difference...
Principle in moral choices is important in a straight-forward way. If you don't have principles that cover a particular case, (like, you find yourself thinking, "Is it wrong to do to someone what everybody else is getting away with?" forget deciding that case until you go back and formulate your principles more thoroughly.
Policy might have no bigger role than one's gut reaction to the case at hand. But gut reaction is very important, because it speaks from your sense of life. Still, it cannot be relied on without getting the principle, and, implicitly, the precedents straightened out.
Courts may be happy to rely on one (or two) of these three modes of argument, and content to ignore the other(s), but moral thinking can't do that.
Epistemologically, precedents are the concretes summarized by principle, which is a general rule, and policy is the relevance of the higher categories in one's hierarchy of knowledge. So, hierarchically, it is: policy, principle, precedent, in top-down order.
You might collapse policy and principle into two levels of principle, I guess, but you can't dispense with principle at the lower level. We can't get from "man's life" to "fraud is wrong" without intermediary steps, it is contrary to psychological factors of cognition, attention span, etc. Since we need the relevant principle per se, the higher contributions are "felt" in the sense-of-life way.
So, I would claim that we do, indeed use all three types of information in arguing and deciding moral choices, but in the case of philosophical reasoning, which moral reasoning is, all must agree. In simple cases, we may only need to use a principle, and not to review precedents, but the gut reaction that represents policy would automatically weigh in.

As an exercize in applying this, I'll try to point out each in this post, above:
The examples I gave, which are in parentheses, are cited as precedents would be, they are chosen to be examples we would all agree to as belonging in one or another category, they are supposed to be exemplars of their category, telling concrete instances.
Policy is the admonition that there must be agreement among all the categories of information. That is logical principle devolving onto any process of thought or decision-making.
The principle here is one about decision-making. Decision-making in moral contexts must be based on a validated principle that states or recognizes the standard of value, it should not be made on emotional grounds, nor from a short-range estimate of consequences, etc. Trivial decisions can, properly, be made on such grounds, but moral decisions require other bases. The principle here is that moral decisions must be principled.

Does that get it?

(Edited by Mindy Newton on 1/19, 11:42am)

Post 18

Monday, January 19, 2009 - 2:58pm

Mindy says, "Epistemologically, precedents are the concretes summarized by principle..."

Yes, but they are more than that. At the time the precedent was made, it involved the making of a sub-principle. Common law on contracts says there must be a 'meeting of the minds,' but that distinction (sub-principle) didn't arise but for the thinking engendered by the concrete case (precedent) that made it a part of the common law on contracts. I love the fact that the principle has an identity which is located both in its original statement and all the statements born of the precedents. And that this identity is a living thing - growing and evolving with the birth of each precedent. Just the simple Business Law 101's section on Contracts shows that awesome power of unearthing all of the elements connecting the practical to the ethical that are found in the list of elements of a valid contract (precedents all).
----------

Mindy, where you say, "Policy is the admonition that there must be agreement among all the categories of information. That is logical principle devolving onto any process of thought or decision-making." I'm not sure I understand that. Wouldn't the philosophical equivalent of legal policy be the stating of a rule for judging a concrete circumstance according to a principle? Maybe that is what you were saying. I'm thinking that laws seek to categorize future occurrences, while precedents seek to use past occurrences to explain principles (and/or the law related to the principle in question).
------------

Mindy, you said, "Decision-making in moral contexts must be based on a validated principle that states or recognizes the standard of value, it should not be made on emotional grounds, nor from a short-range estimate of consequences, etc. Trivial decisions can, properly, be made on such grounds, but moral decisions require other bases. The principle here is that moral decisions must be principled."

I like the essence of what you are saying, but I have an important quibble. Decisions should never (important or trivial) be made as if emotion were a tool of cognition. And any reasoning flawed enough to use short-range estimates of consequences that conflict with long range, balanced goals is still flawed. The trick here is to recognize that we have different modes of consciousness. Sometimes it is appropriate to DECIDE to shift how one is using one's consciousness: to a softer focus - say, for the purpose of relaxing, or a more open and accepting attitude - for the purpose of learning from a trusted source, or to a more closely guarded stance - when in an environment that contains risk, or even to a purposeful, temporary abandonment of reason to maximize sensations and emotions - like when making love. Reason should always make the decisions - big or small - including what state of consciousness is appropriate to our context.

Post 19

Monday, January 19, 2009 - 3:46pm