Rising to the Challenge of Critical Thinking

Joe Bradford

| 01/29/2012

Then there is the doctrine of precedent, one of my favourite doctrines. I have managed to apply it at least once a year since I’ve been on the Bench. The doctrine is that whenever you are faced with a decision, you always follow what the last person who was faced with the same decision did. It is a doctrine eminently suitable for a nation overwhelmingly populated by sheep. As the distinguished chemist, Cornford, said: “The doctrine is based on the theory that nothing should ever be done for the first time.”
– Lionel Murphy (1979), The Responsibility of Judges

“Lawyers operate on a day-to-day basis at a pragmatic level of abstraction which is different to the philosophical level of a jurisprudent. A legal expert system should be built upon a model of legal reasoning, but this model need not conform to any jurisprudential theory about the nature of law.”
– James Popple (1996), A Pragmatic Model of Legal Reasoning, P.63

Precedent, or rather the blind-following thereof, presumably exonerates the public (or at least some of its members) from rising to the challenge of critical thinking. While it functions as a social safety-net for most, disregard for circumstance and social relevance in both public ruling and personal choice disrupts overall justice; justice as understood through either the lenses of custom and convention or those of accommodation and duress. The more drastic the change the more drastic the disruption, and thus the farther the public strays from the spirit of the law, while still monotonously following its letter.


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