Obeying rules, precedent, and authority means deciding against one’s own best judgment.
Evidence
Often when we obey a speed limit we are driving at a speed that is not the same as what we think is the best speed given the traffic, the driving conditions, and our own driving skills. Consequently, to obey a speed limit is to do something we do not think best. Similarly, making a decision just because the same decision has been made before-following precedent-gets interesting primarily when we would otherwise have made a different decision. The parent who gives the younger child the same privileges at the same age as an older child feels the pull of precedent only when he or she otherwise thinks there is a good reason for treating the two differently, and so being constrained by precedent is again a path away from what had otherwise seemed to be the right decision. And we say we are obeying or following an authority only if what we are doing because of what the authority has said is not the same as what we would have done if left to our own devices to make the decision we thought best. The soldier who follows an order might well do something else if allowed to make his or her own unguided (or uncommanded) decision, just as the obedient student or child is one who suppresses his or her own desires to do something else. — Frederick Schauer, Thinking Like a Lawyer, 15
Categorization
- DEFINE: Sharpens what ‘following a rule’ really means: it only bites when the result diverges from your own all-things-considered preference.
- XREF: connects to: A binding precedent obliges courts to follow it or distinguish it. — Frederick Schauer, Thinking Like a Lawyer, 102; Legal indeterminacy is inherent and requires a justified role for conscience — Philip Chase Bobbitt, Reflections Inspired by My Critics, 786; Judges rely on personal values when competing legal principles are evenly balanced — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 156 (+11 more)
Related
- A ruler who makes law objectively subordinates himself to that law. (similarity 0.82)
- Persuasion by past reasoning is not the same as obeying precedent. (similarity 0.81)
- Precedent obliges judges to follow cases they believe were wrongly decided. (similarity 0.80)
- A binding precedent obliges courts to follow it or distinguish it. (similarity 0.79)
- Following precedent is treated as a fallacy outside of law. (similarity 0.78)
Broader Connections
- Undifferentiated power conflates truth with decision-making authority
#corroborates(0.78) - An ultimate power to decide generates its own norms and cannot be trusted
#corroborates(0.75) - Persuasion by past reasoning is not the same as obeying precedent.
#qualifies(0.70) — Frederick Schauer, Thinking Like a Lawyer, 66 - Precedent obliges judges to follow cases they believe were wrongly decided.
#expands(0.70) — Frederick Schauer, Thinking Like a Lawyer, 69 - Military obedience can mask a private rebellion against authority itself
#exemplifies(0.65) — Julien Gracq, Balcony in the Forest, 258 - A binding precedent obliges courts to follow it or distinguish it.
#expands(0.60) — Frederick Schauer, Thinking Like a Lawyer, 102 - Courts sometimes reach wrong outcomes to avoid bad future rules
#complicates(0.60) — Frederick Schauer, Thinking Like a Lawyer, 548 - Judges rely on personal values when competing legal principles are evenly balanced
#qualifies(0.55) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 156 - Legal indeterminacy is inherent and requires a justified role for conscience
#qualifies(0.50) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 786 - Pragmatic law judges rules by their consequences, not their origins.
#contradicts(0.50) — Richard A. Posner, What Has Pragmatism to Offer Law?, 38 - Legal rules resting only on past authority deserve condemnation when their rationale has lapsed
#qualifies(0.50) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 1067