PRECEDENT
The argument from precedent corresponds to the topic n° 11 of Aristotle’s Rhetoric:
Another line of argument is founded upon some decision already pronounced, whether on the same subject or on one like it or contrary to it. (Rhet., II, 23, 11; RR, p. 365)
“Judgment” refers not only to the sentence of a court but to any judgment or decision made in the past, in ordinary life as well as in the political or legal sphere. A precedent in any domain is an example to follow, a model.
If the matter has not been decided in a formal assembly, it may have been decided by such authorities as well-known fables, parables, proverbs or celebrated verses (Lausberg [1960], § 426).
Judgments are made in the context of previous judgments on cases “of the same kind”, i.e., belonging to the same category, see categorization. Precedents correspond to a requirement of continuity and consistency between decisions made in the past and the decision to be made The structural coherence of the discursive field i question is thus strengthened, and protected against any ad hominem accusation directed against the institution, see ad hominem.
Like the argument ab exemplo, the argument from precedent motivates a decision or interpretation by reference to data or examples drawn from tradition. It is a conservative principle, that limits innovation in all areas in which it is applied. As such, it combines well with arguments that appeal to “the wisdom of our forefathers” (Bentham, 1824; see political argument; authority; progress.
The precedent principle proceeds in the following stages:
(i) A problem, P1, a case to be decided.
(ii) Research of similar problems and cases, resulting in
(iii) A categorization: this case is similar to a previous case P0; it falls into the same category as P0, see Analogy (II); Categorization.
(iv) The decision, judgment, evaluation … E was made about P0;
(v) By application of the rule of justice, a similar judgment must be made about P1. “Similar” here means the same judgment, a judgment that is proportional, or opposite; or, more simply, a judgment that is consistent with E.
The appeal to precedent can be blocked at the second stage, where it can be argued that there are substantial differences between P1 and the previous case P0.
The problem of judgment is automatically solved as soon as an analogy is drawn between the problematic fact and an established fact. Precedents save time and effort.
Past historical facts as precedents
Not all past historical facts can serve as precedents; to function as such, they must serve as common references and guides for action in a given present situation. In other words, past historical facts as precedents must be socially ratified, i.e., have a social presence, see schematization.
Historical memory is full of such historical moments that serve to guide action, either positively, as models, or negatively, as anti-models.
The extermination of Jews, Gypsies and homosexuals during the Second World War is now the exemplary characterization of what the world should not be, and a founding example for political thought.
For the United States before the Iraq war, Vietnam was the basic analogical resource that was called to the rescue when it came to opposing military intervention abroad.
Such events produce figures that are a source of antonomasia. Antonomasia is the figure of speech by which a member of a category is designated by the name of the paragon of that category. In 1938, French Prime Minister Paul Daladier and British Prime Minister Neville Chamberlain capitulated to Hitler at Munich. Now, their names are common name: A Daladier, a Chamberlain is a politician who capitulates to a dictator, the incarnation of what a politician should not do. By the same mechanism, to call a political conference “a new Munich” is to assume that it resulted in a capitulation. And of course, the paragon of all anti-models is Hitler.