precedent
Doesn&#39;t the use of precedent constitute a bandwagon fallacy?
<p>I see widespread use of precedent in courts across the world. </p>

<p>In essence, to me this appears as follows:</p>

<p>"Just because some other people responded to x with y, then any time we see something significantly similar to x, we always respond with y."</p>

<p>Doesn't this constitute a logical fallacy; Argumentum ad populum?</p>

<ul>
<li>It prevents people from forming their own opinions about x, just because some other people already made an opinion about something similar.</li>
<li>If abused it can mean that the particularities about this specific x are ignored.</li>
</ul>

<p>The use of precedent seems to imply that it's more important to settle similar cases uniformly, rather than to settle them fairly and justly based on their individual merits.</p>

<p>First, the relevant term is "precedent". You have misstated the nature of "precedent". Precedent is simply the addition of further information about what the law is. A legislature may set forth a law that say "If A, then (if you B, you will suffer consequence C)". But it is not self-evident in a given instance whether A is true, or B is true, or what exactly C refers to. In addition, law is an integrated system, so Law #39 may seem to contradict Law #12: does that mean that Law #39 doesn't apply, or is it that Law #12 (if #12 is a Constitutional provision, #39 is just wrong – laws exist in a hierarchy). Therefore, laws must be interpreted.</p>

<p>"Precedent" refers to the creation of a rule of interpretation, one which is logically consistent with existing rules of interpretation (which are arranged in some logical hierarchy). If the Supreme Court establishes a rule that laws penalizing "hate speech" contradict the First Amendment (<a href="https://en.wikipedia.org/wiki/R.A.V._v._City_of_St._Paul" rel="noreferrer">R.A.V v. St Paul</a>) and therefore cannot be a law in the US, then any similar law is, by rule, also not actually a law. </p>

<p>Creation of precedent itself follows rules, though ones that are harder to discern – this is what "jurisprudence" is about. For example, some justices believe that they should appeal to an inherent feeling of justice; others believe that a law should be interpreted according to perceived legislative intent; still others focus on the wording of the legal text (statute, usually). This does not involve appeal to popular sentiment. It does mean (usually) that law is seen to be a system of rules, and not case-by-case feelings.</p>

<blockquote>
  <p>Doesn’t the use of precedent constitute a bandwagon fallacy?</p>
</blockquote>

<p><strong>No</strong></p>

<p>First, you appear to be conflating two different phenomena:</p>

<ol>
<li><a href="https://en.m.wikipedia.org/wiki/Argumentum_ad_populum" rel="nofollow noreferrer">Argument ad populum</a> which is the logical fallacy that “concludes that a proposition must be true because many or most people believe it”.</li>
<li>The <a href="https://en.m.wikipedia.org/wiki/Bandwagon_effect" rel="nofollow noreferrer">Bandwagon effect</a> which is the phenomenon that the rate of uptake of an idea or belief increases as more people take it up.</li>
</ol>

<p><strong><a href="https://en.m.wikipedia.org/wiki/Precedent" rel="nofollow noreferrer">Precedent</a> is neither.</strong></p>

<p>Precedent is specifically the ruling of a single court of authority (which may consist of one or a majority of several judges) which decides that the law in these particular circumstances is this and is then either binding or persuasive on subsequent judgements.</p>

<blockquote>
  <p>The use of precedence [sic] seems to imply that it's more important to settle similar cases uniformly, rather than to settle them fairly and justly based on their individual merits.</p>
</blockquote>

<p><strong>Yes</strong></p>

<p>Because it is considered that a uniform and predictable application of the law is overall better for society and more just than approaching each case as though there had never been any similar cases. It adopts the principle that similar acts and omissions should have similar consequences and, as far as possible, the actors should know what they are before they carry out those acts and omissions. Don’t do the crime if you can’t do the time but it’s unfair if you and I do the same crime and I get 6 months and you get 6 years.</p>

<p>Justice is only <em>one</em> of the objectives of the legal system, it also needs to deliver consistency and predictability - a legal system that doesn’t do that can’t deliver justice.</p>

<blockquote>
  <p>"Just because some other people responded to x with y, then any time we see something significantly similar to x, we always respond with y."</p>
</blockquote>

<p>This statement does not look correct to me. I think you might actually mean something like the following:</p>

<blockquote>
  <p>"In response to dispute X, the Court has adopted legal theory T that led to ruling Y. Therefore any time in the future the Court sees a dispute with facts that are materially similar to X, it applies legal theory T that results in ruling Y."</p>
</blockquote>

<p>Here, there is no argumentum ad populum.</p>

<hr>

<blockquote>
  <p>I see widespread use of precedent in courts across the world.</p>
</blockquote>

<p>Another possibility is that you may have misunderstood how courts follow precedents. A court is bound to follow a precedent <strong>not because its underlying theory is widely adopted, but because it was adjudicated by the court's higher court(s). A court also usually follows its own precedents.</strong> This is to provide some legal certainty. For example, if some state supreme court has adopted a legal theory that leads to a particular ruling on a particular kind of dispute, its lower courts are bound to apply that theory when faced with disputes with materially similar facts.</p>

<p>One possible source of your confusion might come from the fact that sometimes a court may look into what other courts across the nation or in a foreign country. The court does the survey in order to <strong>reason</strong> about what legal theory might be the most appropriate one in its own jurisdiction. <strong>It is not bound to follow a precedent merely because its underlying legal theory is the most popular one.</strong></p>
