Precedent and Slippery Slope Arguments

WHAT IS AN ARGUMENT BASED ON PRECEDENT?

We have written about the problems with arguments that involve warnings of a “slippery slope” and how that form of argument is a logical fallacy that may appeal to someone’s intuition but does not survive a thoughtful analysis.

There is a similar and related logical fallacy that is very common: the argument that making a decision in a specific situation will create a ‘precedent’ that will result in future problems. At the core of this fallacy is the belief that deciding based on a specific set of conditions  requires that the same decision must be made based on a distinct set of conditions. Essentially, it is a misplaced understanding and application of deductive reasoning.

To understand why this is a fallacy, it is important to consider the underlying rationale behind “precedent.” The concept of precedent in this context is derived from the common law legal system. A fundamental assumption of the rule of law is that people will attempt to comply with the law as they understand the law to be. Therefore, it is important that people can understand the law so that they can act accordingly. This is why the law is frequently considered as a mechanism for social ordering – it creates expectations that people should use to govern their behaviour and to measure the behaviour of others.

In common law legal systems, courts have the authority to make decisions based on the specific situation that is before them. These decisions are a key resource that people can use to be able to understand the law. However, these decisions are based on specific situations and therefore are only applicable to situations that are highly similar. The role of lawyers, legal scholars and judges is to identify and articulate what situations come within the scope of “highly similar.”

Where arguments regarding precedent become like slippery slope arguments is when a person expands the scope of “highly similar” beyond what is reasonable. This can be done without malice or ill intent and can be simply the result of someone not having the requisite legal training or experience. Similarly, a person may be persuaded by a reference to precedent because they do not appreciate the limited scope and role of precedent.

To highlight how limited an appeal to precedent is, consider the Civil Resolution Tribunal. The BC Government, through the Civil Resolution Tribunal Act explicitly stated that decisions of that tribunal are not precedent and are not binding on other CRT members or even the same member when deciding a situation that is similar to a situation in which they made a prior decision.

What this means is that an argument asserting that making a decision in a particular situation will create an obligation that the same decision be made in another situation is a logical fallacy that should not be used as a basis to decide. 

HOW IS PRECEDENT USED TO ARGUE IN FAVOUR OF THE STATUS QUO?

Here is a variation of an example that I have encountered frequently:

An owner has requested authority to alter the common property so that they can install an appliance that will enhance their ability to enjoy their strata lot (for example a heat pump). The owner provides the Strata with information regarding the risks associated with that alteration and risk mitigation measures. The Strata, when deciding whether to permit this alteration accepts that the risk mitigation measures are appropriate.

However, in addition to considering the circumstances of this particular request, it considers whether permitting this alteration would result in the Strata being forced to permit all future alterations without the ability to participate in a risk assessment and risk mitigation program. This usually is communicated as a variation of “if we let this owner install a heat pump, then we need to let every owner install a heat pump.” Therefore, the Strata wants to deny this request because it wants to be able to deny a future request from a hypothetical owner without any knowledge of the risks associated with that request.

This concern with establishing a precedent is not a valid consideration and is an example of how the logical fallacy of a referral to precedent can incorporate the additional logical fallacy of a slippery slope argument.

HOW IS PRECEDENT USED TO ARGUE AGAINST DISCRETION?

We have also encountered arguments that appeal to precedent and “fairness” as a way of supporting a claim that there is no discretion regarding a decision.

The form of this argument is usually some variation of “the Strata let another owner do something, so I want to do something also.”

The way to properly address this type of argument is to investigate whether the situation is truly “highly similar”. Any attempts to generalize between two distinct situations should be considered as unpersuasive unless the facts show that the situations truly are “highly similar.”

PRECEDENT IS PERSUASIVE ONLY IN SITUATIONS THAT ARE HIGHLY SIMILAR

People frequently invoke the concept of “precedent” when attempting to be persuasive. The scope and application of precedent is exceptionally narrow and a reference to precedent should result in detailed analysis instead of being treated as something that prevents investigation and the exercise of discretion.

An argument that something should not be done because it will create a “precedent” that will prevent the future exercise of discretion in a dissimilar situation should be rejected as an improper application of the concept of precedent.

Similarly, an argument that there is no discretion regarding a decision because there is a precedent should be rejected and replaced with a detailed examination whether this situation is truly “highly similar” to a situation in which a prior decision was made.