Precedent is solidified experience. In the realm of ideas it is canned
goods.
It is very useful when fresh ideas are not to be had.
There are advantages in doing things just because they always have been
done. You know what will happen. When you do new things you do not know
what will happen.
Success implies not only sound reasoning, but also the variable factor
of how a thing will work, which is found out only by trying it.
Hence, the surest road to success is to use a mixture of precedent and
initiative. Just how much of each you will require is a matter for your
judgment.
To go entirely by precedent you become a mossback. You are safe, as a
setting hen or a hiving bee is safe. Each succeeding generation acts the
same way. There is a level of efficiency, but no progress.
Boards, trustees, and institutions lay great stress upon precedent, as
they fear responsibility. To do as our predecessors did shifts the
burden of blame a bit from our shoulders.
The precedent is the haven of refuge for them that fear to decide.
Courts of law follow precedent, on the general theory that experience is
more just than individual decision.
Precedent, however, tends to carry forward the ignorance and injustice
of the past.
Mankind is constantly learning, getting new views of truth, seeing new
values in social justice. Precedent clogs this advance. It fixes and
perpetuates the wrongs of man as much as the rights of man.
Hence, while the many must trust to precedent, a few must always
endeavor to break it, to make way for juster conclusions.
Precedent is the root, independent thinking is the branch of the human
tree. Our decisions must conform to the sum of human experience, yet
there must be also the fresh green leaf of present intelligence.
We cannot cut the root of the tree and expect it to live, neither can we
lop off all the leafage of the tree and expect it to live.
The great jurist, such as Marshall, is one who not only knows what the
law is, but what the law ought to be. That is, to his knowledge of
precedent he adds his vision of right under present conditions.
Precedent is often the inertia of monstrous iniquity. War, for instance,
is due to the evil custom of nations who go on in the habit of
war-preparedness. The problem of the twentieth century is to batter down
this precedent by the blows of reason, to overturn it by an upheaval of
humanity.
Evil precedent also lurks in social conditions, in business, and in all
relations of human rights. The past constantly operates to enslave the
present.
We must correct the errors of our fathers if we would enable our
children to correct ours.
Our reverence for the past must be continually qualified by our
reverence for the future.
We are on our way to the Golden Age. The momentum of what has been must
be supplemented by the steam of original conviction, and guided by the
intelligence and courage of the present.