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Stare Decisis: The Maker of Customs
Samuel C. Damren*
I. INTRODUCTION
The decision of the United States Supreme Court in Dickerson v. United
States' places the principles of stare decisis in bold relief. Based on their
prior opinions, a majority of the justices in Dickerson would never have
approved the original Mirandadecision had that case come before them as
a matter of first impression. Thirty-four years later, however, in a seven-
to-two decision, the Supreme Court affirmed Miranda. It did so because
Mirandahad "become a part of our national culture."
Whether or not we would agree with Miranda's reasoning and its result-
ing rules, were we addressing the issue in the first instance, the principles
of stare decisis weigh heavily against overruling it now.... While 'stare
decisis is not an inexorable command' . . . particularly when we are in-
terpreting the Constitution... 'even in constitutional cases, the doctrine
carries such persuasive force that we have always required a departure
from precedent to be supported by some 'special justification." . . . We
do not think there is such justification for overruling Miranda. Miranda
has become embedded in routine police practice to 2 the point where the
warnings have become part of our national culture.
The Dickerson decision requires an assessment of stare decisis' role that
is not limited to the parochial aspects of legal process. The application of
stare decisis involves questions of historical, political, cultural, and philo-
sophical import. It is the intent of this article to lend some coherence to
what Justice Scalia, in his pointed dissent in Dickerson, asserted was the
"lesser evil" of "incoherence, 3 that was being advanced by the Dickerson
majority.
Stare decisis is the rule of English common law that requires judges to
"stand by" their previous "decisions." While phrased in Latin, stare decisis
"was not definitely enunciated" as a principle in English law until the
nineteenth century.4 However, the gestation of stare decisis began in the
thirteenth century. Prior to this period and for long after, its development
was limited by royal fiat: "[Ilf you could appeal to legal principle what
you would say would be well enough, but against the King, who is above
the law, you cannot rely on legal principle." 5 Even with the gradual re-
moval of this limitation, the application of stare decisis as a legal principle
was not possible without a reliable and objective system for reporting judi-
cial opinions. 6 This did not occur in English law until the advent of the
Year Books in the late 1200s. 7 Before the Year Books, legal principles
established by case law "usually took the form of an appeal to memory"
of judges and barristers. While some cases reported in these earlier peri-
ods were memorialized, the reliability and objectivity of the reports was
highly suspect.9 From this perspective, the Year Books represented the
"crude beginnings of law reporting."' ° The decisions of English judges
reported in the Year Books were initially regarded as "only evidence" of
the law instead of binding precedent." Toward the end of the sixteenth
century, given an ever increasing body of case law within which to root,
this limitation also began to erode.' 2 The system of binding precedent that
is the hallmark of the modem English and American judicial systems came
to full flower during the late eighteenth century and early nineteenth cen-
13
tury.
The tension between stare decisis' inexorable tether to the past and the
ever-changing future landscape has been the subject of innumerable com-
mentaries. Nevertheless, whether one finds resonance in Oliver Wendell
Holmes' caustic assertion that:
[I]t is revolting to have no better reason for a rule of law than that so it
was laid down in the time of Henry IV. It is still more revolting if the
grounds upon which it was laid down have vanished 14long since, and the
rule simply persists from blind imitation of the past[,]
or the venerate intonations of Yale law professor Anthony Kronman's
homage to traditionalism:
[I]f we have any grounds for believing that the future will honor what we
do, it can therefore only be the uncompelled honor we show the past.
The partnership among the generations... thus depends for the attain-
ment of its ends on each generation's treating the achievements of its
predecessors as something inherently worthy of respect. It is only on that
condition - on the basis of a traditionalism which honors the past for its
own sake - that the world of culture can be sustained[,]' 5
the tension between past and present defines the accepted problemique of
stare decisis.
From this accepted perspective, stare decisis requires the judiciary to
decide cases as if from the deck of a moving vessel 16 rather than from the
floor of an immobile courthouse. Proponents of change, such as Holmes,
find themselves frustrated by the degree to which the inertia of past deci-
sions can inhibit present day shifts in course. Proponents of traditionalism,
like Kronman, fear that without sufficient inertia from the past to guide our
present-day decision-making, abrupt shifts in course caused by the strong,
but ephemeral gusts of social, political, or economic change could founder
society's judicial affairs. Commentators proceeding from this perspective
focus on striking a balance between various components to these compet-
ing interests in order to explain and isolate the so-called rules of
precedent. 7
It is the thesis of this article that the accepted problemique of tradition-
alism masks the more fundamental roles that stare decisis plays, first, in
the "individualization" of law to fit particular circumstances, and second,
in the common law judiciaries' relationship to, and competition with, other
institutions for societal power.
Despite trappings of robes, marble, bailiffs, clerks, wigs, and other ac-
coutrements of power, in its relationship to, and competition with, other
sources of societal authority, the judiciaries' position as an independent
source of societal power rests upon an inconsistency. This inconsistency is
15. Anthony T. Kronman, Precedent and Tradition, 99 YALE L.J. 946, 1068
(1990).
16. See, e.g., Christopher J. Peters, Foolish Consistency: On Equality, Integrity
and Justice in Stare Decisis, 105 YALE L.J. 2031, 2081 n. 185 (1996).
17. See ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY (Harold Dextor
Hazeltine, LITT. D. ed., Wm.W. Gaunt & Sons, Inc. 1986) (1923); see also
PRECEDENT IN LAW (Laurence Goldstein ed., Clarendon Press, Oxford 1987); RUPERT
CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW (C. Goldstein ed., Clarendon
Press, Oxford, 1991); David Luban, Legal Traditionalism, 43 STAN. L. REV. 1035
(1991); Gerald J.Postema, Moral Presence, 36 MCGILL L.J. 1153 (1991);*Deborah
Hellman, The Importance of Appearing Principled,37 ARIz. L. REv. 1106 (1995);
SAUL BRENNER & HAROLD J. SPAETH, STARE INDECISIS (Cambridge Univ. Press,
1995).
NEW ENGLAND LAW REVIEW [Vol. 35:1
created by the fundamental edicts of the legal order that "law is not the
rule of men"' 8 and that "legal authority never depends upon the individual
who happens to occupy an office."' 19 Together, these edicts form a di-
lemma: how do judges, who are not above the law, but are nevertheless
charged with enforcing it, do so without becoming or appearing to be-
come, equivalent to the law?
As a side step to this dilemma, the judiciary generally notes that while
courts enforce the law, law itself is established by sources of authority that
are external to the judiciary. For example, courts enforce (i) statutes and
constitutional provisions that legislative bodies enact, (ii) contracts that
private parties create, and (iii) the established precedent of the common
law. Although this latter source of authority is originally internal to the
judiciary, through the elixir of time, the principle of stare decisis neatly
converts the past decisions of the judiciary into a seemingly immutable
source of external authority for present-day courts. In addition, since only
judges can decide whether, and to what extent, the judiciaries' past deci-
sions bind present-day judicial decision-making, the judiciaries' access to
this external source of authority is exclusive. As a result, the principle of
stare decisis functions in common law systems not only as a self-renewing
source of legitimacy for the court's authority, but also as a mechanism to
cede a prominent position in the allocation of economic, social, and politi-
cal power among societal institutions to the judiciary itself.
While one may indulge in unending scholarly debate as to whether the
forces of traditionalism that are embodied in the principle of stare decisis
constitute a "ball and chain" or a "boon" to the development of the law,
these discussions are incidental to the real work that the mechanism of
stare decisis performs in common law legal systems. The historical cir-
cumstances that enabled the common law judiciary, through the enuncia-
tion of stare decisis, to annex a broad range of economic, social, and po-
litical power to itself, together with stare decisis' origins in canon law, are
discussed in Part V of this article. The task of retracing the concept of
stare decisis through the labyrinth of political, philosophical, and anthro-
pological works that touch on the subject of traditionalism and its relation-
ship to social order is undertaken in Parts III and IV. This latter review is
a necessary foundation for the analysis of stare decisis' role as a tool to
"individualize" and "guide" justice that is set forth in the Conclusion of
this article.
Karl N. Llewellyn, The Status of the Rule of Judicial Precedent, 14 U. CIN. L. REv.
203, 216 (1940).
22. KARL LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA 50-51 (Paul Gewirtz
ed., Michael Ansaldi trans., 1989).
23. Llewellyn studied in Germany as a student and, in fact, remained in Germany
during the First World War. He later taught at various German Universities.
LLEWELLYN, supra note 22, at 50-51.
24. Id.at 50-51.
25 See Wise, supra note 13, at 1051. Citing THE COMMON TRADITION, E.W. Wise
NEW ENGLAND LAW REVIEW [Vol. 35:1
lying the workings of the legal order.26 Llewellyn's rejection of the "rules
of precedent" did not, however, include a repudiation of the accepted
problematique of stare decisis. To the contrary, Llewellyn's commentar-
ies and writings indicate that while he very much agreed with the accepted
problematiqueof traditionalism, he believed that a different explanation of
the underlying tensions involved in the development of law was required.
In The Cheyenne Way, written by Llewellyn and anthropologist E. Ad-
amson Hoebel, Llewellyn and Hoebel expanded the concept of the legal
order to include the societal weave of primitive culture. 7 As an unstated
subtext, the purported Cheyenne legal order is treated by the authors both
as a laboratory subject to dramatize Llewellyn's Legal Realist perspectives
and as an introduction for their proposed model of the "Order of the En-
tirety" to explain the "extra-legal" grounds which underlie the illusory
rules of precedent. Llewellyn was extremely invested in the formulations
that he and Hoebel introduced in The Cheyenne Way to describe the true
workings of the legal order. In contemporaneous articles, Llewellyn not
only refined, but greatly expanded, these formulations to include a number
of other novel terms: "skelegal," "jurid," "law-wavers," "legaloid," "rec-
ognized going order," "official-legal," "channeling," "arranging the say,"
and "Net Drive. ' 8 Despite his obvious commitment to this subject, no one
has continued Llewellyn's work, much less adopted the novel conceptual
tags that he devised to explain the underlying workings of the legal order.
There are good reasons for this inattention.
The ultimate failure of Llewellyn's and Hoebel's construct of the Order
of the Entirety as an explanation of the underlying processes of the legal
order does not, however, diminish the force of Llewellyn's criticisms of
the failings of the so-called rules of precedent to serve as a workable con-
struct of those same processes. Llewellyn's and Hoebel's failure was not
the result of lack of ability or dedication. Llewellyn, after all, was the
prime architect of the Uniform Commercial Code, 29 a time-tested construct
of admirable insight and care. He also possessed a first rate intellectual
notes that Llewellyn "gives a list, admittedly incomplete, of some sixty-four tech-
niques for handling precedent, illustrated by reference to decided American cases:
eight ways to follow but constrict a precedent, eight to stand by it, thirty-two to expand
it, twelve ways to avoid it and four to kill it." Id.
26. KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 61
(1962).
27. KARL LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY (1941).
28. Karl Llewellyn, The Normative, The Legal, and The Law-Jobs: The Problem of
JuristicMethod, 49 YALE L.J., 1355, 1365-91 (1940).
29. See, e.g., Grant Gilmore, In Memoriam: Karl Llewellyn, 71 YALE L.J. 813
(1962); see also William A. Schnader, A Short History of the Preparationand Enact-
ment of the Uniform Commercial Code, 22 U. MIAMI L. REV. 1 (1967); Richard Dan-
zig, A Comment on the Jurisprudenceof the Uniform Commercial Code, 27 STAN. L.
REV. 621 (1975); Symposium, Origins and Evolution: Drafters Reflect Upon the Uni-
form Commercial Code, 43 OHIO ST. L.J. 535 (1982).
2000] STARE DECISIS
creativity so obvious and evident that Cheyenne, who met him, regarded
him as a "medicine man" who "stands and shakes himself so that all that
brilliant stuff showers off him like snow." 30 If ever there was a legal
scholar well set to best the challenge posed by the illusionary rules of stare
decisis and to better describe the actual workings of the underlying legal
order, it was Karl Llewellyn. Nevertheless, within the failings of Llewel-
lyn's construct of the Order of the Entirety lie a path to correctly re-orient
the accepted problematique of stare decisis.
The formulation of the law's relationship to society contained in The
Cheyenne Way is abstract in the extreme. Llewellyn and Hoebel begin by
postulating a "Whole," 31 a functional society, that is subject to "the diver-
gent urges or desires"'32 of its individual members. These drives manifest
themselves in the form of "Claims" 33 of members against one another.
Hoebel and Llewellyn equate the process by which Claims are resolved as
the legal order. The authors then introduce two additional concepts to
describe the "dynamics which generate a legal order. 3 4 The first concept
is that of Drift, "Drift is the relatively impersonal and unnoticed lumping
of behavior into belts around semi-lines which come to interlock, together
with the further relatively impersonal and unnoticed shifting of the 'cen-
ters' of such belts." 35 The second concept is Drive, "Drive, on the other
hand, is individuated and personal. Moreover, it takes on of necessity a
conscious aspect in things legal, if and whenever it meets with
challenge. 3 6 In their system, Llewellyn and Hoebel assert that the interac-
tion of societal Drift and individual Drive through the bringing of Claims
creates the necessity for legal process, and that the resolution
37
of Claims
through that process produces the Order of the Entirety.
The interaction of Drift and Drive also gives birth to what Hoebel and
Llewellyn term the "primitive sense of justice, ' 3 which requires "no organ
to build or create it," and exists independently of the cultural state of any
particular society. It is a "primitivity... which continues into, and con-
tinues to effect, the most elaborate and sophisticated culture." 40 Following
up on Holmes' observation that "[t]he wisest jurists and the most skillful..
can still feel the ground of a decision as he cannot state it," 41 Hoebel and
30 N.E.H. HULL, RoscOE POUND AND KARL LLEWELLYN 288 (1997) (citing E.
Adamson Hoebel's letter to Llewellyn, Nov. 2, 1935).
31. LLEWELLYN & HOEBEL, supra note 27, at 274.
32. Id.
33. Id. at 294.
34. Id. at 278.
35. Id.
36. Id.
37. See LLEWELLYN & HOEBEL, supra note 27, at 274-78.
38. Id. at281.
39. Id.
40. Id.
41. Id. at 311.
NEW ENGLAND LAW REVIEW [Vol. 35:1
Llewellyn conclude that this "feeling" corresponds to the societal Drift that
can be brought to the surface by the occurrence of a Claim.
Llewellyn and Hoebel also isolate two additional attributes of the legal
order: Regularity and Authority. In their view, law is distinguished from
moral pressure by its use of physical sanction. The use of physical sanc-
tion is not, however, a simple matter of "fang and claw."42 Instead, it is
"part of the going order" of society,43 which attains "officialdom" or
"authority" by being "commanded as if for, and on behalf of, the
Whole."" The authors assert that authority alone, however, cannot consti-
tute a functioning legal order:
Legal philosophers who describe regimes which they call "despotism" or
"tyranny" tend to forget or under stress that to continue as a group at all,
the people of the group require some regularity of conduct. And they
tend to under stress especially that a despot, with the worst will in the45
world, can still be despotic and arbitrary only while he can stay awake.
While Llewellyn and Hoebel acknowledge that a legal order cannot
function without "some regularity of conduct," they also contend that too
great an adherence to past practices stifles the realization of the Drift in the
Order of the Entirety and can produce an arbitrariness equivalent to that of
an awakened despot:
When the regularity elements in a legal system not only gain the upper
hand, but get out of hand, there results the wooden, externalized, grace-
less, and cumbersome mal-adaptation which is summed up as legalism.
Legalism is marked by unsatisfactory results, by wooden arbitrariness,
46 as
compared to the tyrant's arbitrariness of whimsy or temper.
In the ensuing contest between Authority and Regularity, Llewellyn and
Hoebel assert that the goal of "law stuff's business is to hold in balance"
society's "drives and tensions.4 7
In the final chapter of The Cheyenne Way, the authors contrast the
American and German legal systems with the Cheyenne legal order. The
authors begin by characterizing the American system as "judge-centered,"
"groping," and tending to produce "lagging judgments:"
Reinforcing the importance of adjudication as the essential crucible of
law, despite the wealth and welter of the statutes, is the absence of the
systematic-theoretical in our general culture, with its muddle-through, "Is
it practical?" get-down-to-cases flavor. There is the looseness and
vagueness of our theorizing, our willingness to be precise of phrase and
definition, and our greater unwillingness to follow the logic of an "ac-
could be proud. This is the more notable because explicit law, i.e., law
clothed in rules, was exceedingly rare among them. It is the more nota-
ble because they did not have many fixed rituals of procedure to guide
them, around whose application or whose ceremonial formulae 5 4 and be-
havior, concepts of legal correctness so readily come to cluster.
From Llewellyn and Hoebel's perspective, the virtues of the Cheyenne
legal order are self-evident; the Cheyenne legal order is not blindly bound
to the past nor is it falsely led through either "groping" decisions or "rig-
orous articulation" to judgments that inadequately reflect societal Drift."5
The authors do fault the Cheyenne legal process for its lack of Regularity
and for being less accessible than it should be, thereby, permitting "minor
trouble-festers to a head" and the continuation of "smouldering
irritations, 5 6 but these are minor faults that the authors believe could be
cured by more active legal intervention.
What Llewellyn and Hoebel assert that they found in the Cheyenne legal
order was a highly effective system of "law stuff' that does not rest upon
either illusionary rules of precedent or an overly "rigorous articulation."
Unfortunately, as the authors lament:
It cannot of course be asserted that the Cheyennes could have maintained
their juristic sureness and malleability in the teeth of a regime of accu-
mulating written records, or in the teeth of the development of a class of
specialized law-men whose trade skills mighi tend to drown out the
common sensitivity, or in the teeth of complex economic development...
At least it is easy to see that the more complex and specialized the un-
derlying institutions come to be, and the less clearly they are integrated to
respond bell-like to the tongue of justice-in-controversy and of wisdom,
the greater and more unique the calibre [sic] of man required to do Chey-
enne-like work under 5 7 the cross-thrust of the case, the given "law" materi-
als, and the future.
Thus, Llewellyn and Hoebel close The Cheyenne Way with the tragic ob-
servation that "Cheyenne law leaped to its glory as it set."58
From an anthropological standpoint, Llewellyn's and Hoebel's view of
the so-called Cheyenne legal order is little more than a personalized form
of ethnocentrism. What they both failed to appreciate in their expansion of
the so-called legal order to include Cheyenne culture is the fundamental
differences between primitive culture and state-based society. According
to anthropologists Robert Redfield and Stanley Diamond, the fulcrum of
primitive society is the relationship between and among kinship groups;
whereas, the fulcrum of state-based society is the relationship between the
59. Stanley Diamond, The Rule of Law Versus the Order of Custom, 38 SOC. RES.
42 (1971); see also Robert Redfield, PrimitiveLaw, 33 U. CIN. L. REV. 1 (1964).
60. See Redfield, supra note 59, at 22.
61. Id at 20.
62. E. ADAMSON HOEBEL, THE LAW OF PRIMITIVE MAN 310 (Cambridge, Massa-
chusetts 1954); see also 13 ENCYCLOPEDIA BRITANNICA 780, 781 (1963).
63. See HOEBEL,supra note 61, at 310-11, 318-19,322.
64. N.E.H. HULL, ROSCOE POUND & KARL LLEWELLYN, SEARCHING FOR AN
AMERICAN JURISPRUDENCE 192-93 (Univ. of Chicago Press 1997).
65. Id. at 292.
66. Id.at 292.
67. Id. at 293.
NEW ENGLAND LAW REVIEW [Vol. 35:1
ety accept the authority of chiefs; (4) hence, chiefs are the officials of the
Cheyenne legal order.
The difference between the "rules" that the state-based legal order util-
izes to mete out "punishment" and the "acts" required in primitive culture
to "restore balance" are placed in dramatic relief by the differing ways in
which primitive culture and state society incorporate "games" into their
societal weave. According to the French anthropologist, Clause Levi-
Strauss, in state society, "games" are utilized exclusively for disjunctive
purposes; that is, to produce winners and losers.6 8 However, in primitive
society, games are often utilized to create conjunction; that is, to restore
societal balance and symmetry. 69 For example, New Guinea Tribes who
have learned football will play the match for several days running until
each side achieves the same score.70 Similarly, the Fox Indians practice a
ritual game during funeral rites in which the "dead" play the "living." The
"dead" always win; thereby, providing them with the illusion of life (by
"killing" their opponent), and ritualistic equality with the "living., 71 Eth-
nologies of primitive peoples are abound with similar illustrations of this
principle of balance.72
While Hoebel and Llewellyn treated the Cheyenne social order as a test
subject for their theory of the Order of the Entirety, Levi-Strauss (who
originally studied to be a lawyer) offers an historical example of the im-
portance of the principle of balance and symmetry to the ordered existence
of primitive society. In Tristes Tropiques, Levi-Strauss recounts the im-
portance of the elaborate village designs of South American tribes to the
continuation and maintenance of their society, a fact well known to the
Spanish missionaries who sought to convert these "savages" to Christian-
ity:
The circular arrangement of the huts around the men's house is so im-
portant a factor in their social and religious life that the Salesian mission-
aries in the Rio das Gas~as region were quick to realize that the surest
way to convert the Bororo was to make them abandon their village in fa-
vour of one with the houses set out in parallel rows. Once they had been
deprived of their bearings and were without the plan which acted as a
confirmation of their native lore, the Indians soon lost any feeling for tra-
dition; it was as if their social and religious systems (we shall see that
one cannot be dissociated from the other) were too complex to exist
without the pattern which was embodied in the plan of the village and of
68. CLAUSE LEVI-STRAUSS, THE SAVAGE MIND 32 (Univ. of Chicago Press 1962).
69. Id. at 31.
70. See id. at 30-31.
71. See id. at 32.
72. See, e.g., Bruce Biggs, Translations from the Maori, in MARSHALL D.
SAHLINS, STONE AGE EcONOMICS 160 (1972); or the more complicated exchange of
thefai tuatina,fai matua,fai soko, described by RAYMOND FIRTH in WE, THE TIKOPOA
433 (1936).
2000] STARE DECISIS
which their
73 awareness was constantly being refreshed by their everyday
activities.
Many philosophers in the late industrial age deeply quarreled with the
ball-and-chain of traditionalism, 75 but no philosopher railed against its
limitations as did Nietzsche. Indeed, it is fair to say that Nietzsche created
an entire philosophy from his perspective on this conflict. In Nietzsche's
view, the force of traditionalism has, over the ages, reduced modem man
to a "herd man, 76 that is so yoked
77
to the concept of tradition that "any
custom is better than no custom.
What is tradition? A higher authority which one obeys, not because it
commands what is useful to us, but because it commands. What distin-
guishes this feeling in the presence of tradition from the feeling of fear in
general? It is fear in the presence of a higher intellect which here com-
mands, of an incomprehensible, indefinite power, of something more
than personal - there is superstition in this fear. Originally all education
and care of health, marriage, cure of sickness, agriculture, war, speech
and silence, traffic with one another and with the gods belonged within
the domain of morality: they demanded one observe prescriptions with-
out thinking of oneself as an individual. Originally, therefore, everything
was custom, and whoever wanted to elevate himself above it had to be-
come lawgiver and medicine man and a kind of demi-god: that78 is to say,
he had to make customs - a dreadful, mortally dangerous thing!
The terms that Llewellyn and Hoebel utilized in their framework of the
Order of the Entirety - "whole," "drift," and "drive" - bear a strong
resemblance to words and phrases employed by Nietzsche in his earlier
formulation of the dilemmas and obstacles confronting modem moral so-
ciety. For example, Nietzsche's analysis of "moral society" postulates, as
did Llewellyn's and Hoebel's analysis of the legal order, the existence of a
"whole" constituting the "structure of society. '79 This "whole" is continu-
ally challenged by "strong and dangerous drives"80 which parallel the "in-
dividual and personal" drives described by Llewellyn and Hoebel in The
Cheyenne Way.
From Nietzsche's perspective, "the totality of one's drives constitutes
his being,"8 ' which, when exposed to the forces of traditionalism, is im-
mediately subject to persecution.
The highest and strongest drives, when they break out passionately and
drive the individual far above the average and the flats of the herd con-
science, wreck the self-confidence of the community, its faith in itself,
and it is as if its82spine snapped. Hence just these drives are branded and
slandered most.
Nietzsche goes so far in his polemic to assert that, as a necessary pre-
requisite to the evaluation of individual drives, we must first purge our-
selves of all laden concepts of traditionalism or, as he entitled one of his
books, we must advance "Beyond Good and Evil."
[A particular individual drive] [i]n itself it has, like every drive, neither
this moral character nor any moral character at all, nor even a definite
attendant sensation of pleasure or displeasure: it acquires all this, as its
second nature, only when it enters into relations with drives already bap-
tised good or evil or is noted as a quality of beings3 the people have al-
ready evaluated and determined in a moral sense.8
Llewellyn and Hoebel hoped to expose the true dynamics of the legal
order by a cross cultural examination of the Cheyenne, American, and
German legal systems. Nietzsche previewed their efforts in his investiga-
tion of "moral society" by seeking to examine "morality" in the context of
"many moralities." In his investigation, Nietzsche criticized the endeavors
of previous "moral philosophers" because while they "knew the facts of
morality," they
never laid eyes on the real problems of morality; for these emerge only
when we compare many moralities. In all "science of morals" so far one
thing was lacking, strange as it may sound: the problem of morality it-
self; what was lacking was any suspicion that there was something prob-
lematic here. What the philosophers called "a rational foundation for
morality" and tried to supply was, seen in the right light, merely a schol-
arly variation of the common faith in the prevalent morality; a new
means of expression for this faith; and thus just another fact within a
particular morality; indeed, in the last analysis a kind of denial that this
morality might ever be considered problematic - certainly the very oppo-
site of
84
an examination, analysis, questioning, and vivisection of this very
faith.
Nietzsche's view of the so-called "rational foundation for morality" that
was expressed by these prior philosophers as constituting no more than a
"scholarly variation" of the "herd conscience" echoes throughout Llewel-
lyn's criticisms of the so-called rules of precedent. For both Nietzsche and
Llewellyn, the "scholarly" "legalistic" articulation of a "science of moral-
ity" "rules of precedent" constitute merely an illusion which distracts from
the true conflicts confronting the "moral" "legal" order.
Nietzsche's selection of the "scholar" (the "philosopher") as the person
best able to guide moral society over the "flats of the herd conscience"8 5
predates, but is parallel to, Llewellyn's and Hoebel's selection of Holmes'
"wisest jurist" or the Cheyenne's "intuitive juristic precision" as a guide
through the Order of the Entirety. Nietzsche described the task set for his
scholar/philosopher as follows:
More and more it seems to me that the philosopher, being of necessity a
man of tomorrow and the day after tomorrow, has always found himself,
and had to find himself, in contradiction to his today: his enemy was ever
the ideal of today. So far all these extraordinary furtherers of man whom
one calls philosophers, though they themselves have rarely felt like
friends of wisdom but rather like disagreeable fools and dangerous ques-
tion marks, have found their task, their hard, unwanted, inescapable task,
but eventually also the greatness of their task, in being the bad con-
science of their time. By applying the knife vivisectionally to the best of
the very virtues of their time, they betrayed what was their own secret: to
know of a new
s6
greatness of man, of a new untrodden way to his en-
hancement.
the rulings of Papal judges do not have the force of religious law.'0 ' This
impediment, however, did not prevent Canon lawyers from altering the
effect of Papal edicts through interpretation, and from doing so in a man-
ner that would impress any critic of the rules of precedent,' 0 2 including
Llewellyn. Bassett offers one such example:
At the beginning of the thirteenth century, Pope Innocent III (1198-1216)
faced a serious problem of recruiting for the crusade projects he was
promoting. To solve the problem, the Pope decreed that husbands might
unilaterally make and fulfill vows to go on crusades, even without the
consent of their wives. The papal ruling clearly contradicted the canon-
ists' belief in the consensual and contractual nature of marriage and the
equality of spouses. They had steadfastly taught both these principles
since the time of Pope Nicholas 11 (1057-1061). Pope Innocent's ruling
deprived wives of their rights in marriage. Instead of interpreting the pa-
pal decretal broadly to mean that a paramount public need of the church,
namely a crusade, should take precedence over the private rights of mar-
ried persons, the thirteenth-century canonists unanimously interpreted the
crusader's vow in the most restrictive way possible. There was no at-
tempt to enlarge its scope or to apply it to other situations, although some
could have made an argument by analogy so as to submerge personal
rights in the exigencies of society. So restrictive was the canonists' in-
terpretation, in fact, that it led Thomas Aquinas to teach that, although
legally permitted by the pope in this instance, such vows were nonethe-
less morally reprehensible. Both the canonists and later the theologians
repudiated on moral grounds a legal position established by papal legis-
lation. In effect, the canonists nullified 10the
3 will of the legislator, the
pope, by interpreting away his legislation.
In their creative activity, Canon lawyers and scholars came to rely upon
the same "rule of reason" that Holmes invoked nearly 700 years later in his
criticisms of inflexible applications of stare decisis.1° 4 According to Bas-
sett:
For the canonists, all law was a rule of reason. Gratian and the com-
mentators upon his Decree brought together three distinct streams of an-
cient legal thought: Stoic, Christian, and Aristotelian. They used this
synthesis to reject the concept of law as a blind mandate of a transcen-
dent, prehistoric will. The canonists then proceeded to erect upon the
synthesis a pragmatic notion of law as a means to achieve human ends of
peace, justice, and individual well-being. This notion was an entirely
new way of looking at law. For the medieval canon lawyers, if a law
ceased to have a reasonable purpose, it ceased being a law: cessante
causa cessat lex. Law could be law only if it were reasonable. Laws
should be obeyed only if reasonable in the light of the justice they pro-
duced in particular cases. By demanding that law conform to reason and
that reason be the judge of any law, or indeed, any act of king or pope,
the medieval canonists laid the foundations for a legal revolution. That
legal revolution gradually led, within the common law tradition, to an
10 5 the role of the judge as both keeper of conscience and oracle
exultation of
of the law.
Coincident with the residing tides of Papal and royal authority that oc-
curred in England during the thirteenth to eighteenth centuries, 10 6 the
cross-fertilization of the Canon law rule of interpretation into the soil of
English common law gave birth to a curious hybrid, the principle of stare
decisis and its ultimate anointment of the common law judiciary as "both
keeper of conscience and oracle of law." Into this vacuum of power, the
English judiciary gradually, but surely, expanded its influence,10 7 so much
that, by the nineteenth century, when stare decisis was first "definitely
enunciated," the common law judiciary was, finally, openly acknowledged
as an original source of law. 0 8 The enunciation of the principle of stare
decisis was a Nietzschean solution for it confirmed the judiciary's ascen-
sion by, in effect, and to borrow Nietzsche's words, "elevating" the judici-
ary "above custom [and] to becomei0 9
a law giver and medicine man... that
is to say.., to make customs."
If the grip of the common law English judiciary on this narrow precipice
of power was tenuous at first, centuries of recorded decisions have since
provided a deep foundation for the common law judiciary's exercise of the
substantial and independent authority that is not only reposed in it, but is
continually replenished, by the principle of stare decisis. Indeed, in the
common law system that was transplanted from England to the United
States, where an even greater emphasis was placed on the creation of a
strong and independent judiciary, there are over four million reported ap-
pellate decisions that today make up this foundation. It is a foundation that
no other institutional source of authority in modem society can now un-
dercut or legitimately dispute.
VI. CONCLUSION
115. Ruggero Aldisert, Precedent: What It Is and What It Isn't; When Do We Kiss
It and When Do We Kill 1?, 17 PEPP. L. REV. 605, 616 (1990).
116. Aldisert, supranote 112 at 958.
117. Dickerson v. United States, 120 S. Ct. 2326, 2345 (2000).