Custodian of Precedent

The Custodian of Precedent is the officer of the Office of the Custodian charged with determining which prior rulings bind a current proceeding and which may be set aside as spent. The office is old, though not so old as it is said to be. Its authority derives from the Custodian's Manual, Annex 9, which reserves to the Custodian of Precedent alone the right to certify a precedent as "living" or to declare it "closed," and it is the closure of precedent, not its keeping, that has made the office contentious.

The Custodian of Precedent sits on the Custodial Chain immediately below the Custodian of Recursive Truth and immediately above the Custodian of Uncommon Senses, an ordering that has been challenged twice and reaffirmed once. Under Directive 117.Δ.9 ("The Custodian's Recusal") the Custodian of Precedent is required to recuse from any case in which the governing precedent was certified by the Custodian of Precedent's own hand within the preceding forty years; in practice this leaves the office, as one of its holders observed, "with a great deal to certify and almost nothing to decide" (Custodian of Precedent Enna Voss, address to the Assize of Seals, Y287 SCE).

Origin and the Question of the First Custodian

The office is conventionally dated to Y168 SCE, when the Third Concordance was found to contain two annexes assigning the same adjudicative power to different custodial ranks. The Office of the Custodian resolved the collision by creating a new post whose sole function was to decide which of the two annexes had, in any given matter, applied first. That decision — Record 4,118, the Certification of the Earlier Annex — is itself the founding precedent of the office, a fact that the office has never quite resolved and does not discuss.

Two recensions of the founding record disagree on whether the first Custodian of Precedent was appointed or merely noticed. The Combed Recension (Floor 14,002) gives a name and a date of investiture. The Dry Recension (Floor 402, an aperture copy) gives neither, recording only that "the office having begun, it was entered in the roll" (Custodian's Manual, Dry Recension, folio 88 recto). The Recursive Amendments Office has declined to reconcile the two, citing the Precedent Omega745, which holds that a discrepancy between recensions is not an error until someone relies on it.

Jurisdiction and Method

The Custodian of Precedent does not hear cases. The office hears the weight of cases: it receives from a sitting adjudicator a bundle of prior rulings submitted as governing, and returns the bundle with each ruling marked living, closed, or — a category introduced in Y311 SCE and still not defined in any Concordance — "resting." Resting precedents may be cited but not relied upon, a distinction that occupies thirty-one folios of the Manual and that the Custodian of Surfaces has described as "a courtesy extended to arguments that have not yet lost."

Certification is by seal, applied to the obverse of the bundle's lead folio. The seal is not reusable, and a certified bundle that is dropped is certified again at the submitter's expense. Since the office's removal to the western wings in Y344 SCE, bundles are carried up by the Custodial Chain and are not carried down; a party who wishes to withdraw a submission must petition the Archival Custodian, which has been done four times and allowed once, in the matter of the Hollow Assize.

The Voss Revision and Its Discontents

Between Y283 and Y298 SCE the office, under Enna Voss, undertook a systematic closure of precedents certified before Y200. The revision closed some nine thousand rulings, among them the Precedent Omega745 itself, which was restored by amendment after eleven months during which, by the office's own later admission, "a number of matters proceeded on foundations since removed" (Voss, Revision Ledger, entry 8,904).

The episode produced the standing disagreement over the office's remit. The Conservative reading holds that closure is final and that the office cannot be asked to reconsider what it has sealed; its partisans cite the Custodian of Recursive Truth, who has certified that "a closed precedent is not a missing precedent" (Certification 77, Y302 SCE). The Revisionist reading holds that closure is provisional and that the office is obliged to reopen any precedent on which a current matter actually turns; its partisans cite the same certification, reading "closed" in the technical sense of closed to amendment, not to review. Both readings are annotated in the office's working copy of the Manual, in different inks, on facing folios.

"The precedent does not govern because it is old. It governs because it has not yet been asked a question it cannot answer."

— Third Concordance, Annex 9, gloss on Clause 4

Relations with the Recursive Amendments Office

The office's most durable friction is with the Recursive Amendments Office, which by the Precedent of Recursive Jurisdiction (Floor 5,712, Ruling 889) is the permanent custodian of recursive amendment processes. Where an amendment amends the procedure by which precedents are certified, the two offices hold concurrent authority, and neither has conceded precedence. The dispute is conducted entirely in the margins of shared registers, in which each office annotates the other's certifications with a small superscript letter — r for the Recursive Amendments Office, p for the Custodian of Precedent — that has never been formally explained in any published key.

The dispute is not merely procedural. In Y366 SCE the Recursive Amendments Office amended its own certification procedure four times in a single afternoon, each amendment citing the last. The Custodian of Precedent of the day, Halden Rusk, sealed all four as resting and returned the bundle with a note reading, in full: "Which of these is the procedure?" The note was entered in the Recursive Amendments Office's register without answer.

Holders and Current Practice

The office has been held by nineteen persons since the Dry Recension, of whom four are recorded only by seal. The current Custodian of Precedent, appointed Y401 SCE, has not certified a new precedent in six years and has spent the interval recertifying older ones under the Voss Revision — a course the office describes as "consolidation" and its critics describe as "a second revision conducted without the first revision's paperwork." The consolidation is expected to conclude in Y412 SCE, provided the Recursive Amendments Office does not amend the certification procedure in the interim.

Visitors to the office's chambers on Floor 9,904 are asked to leave bundles with the duty clerk and to collect them from the same window; nothing may be handed across the threshold, and the threshold is marked in brass. The Custodian of Precedent does not receive correspondence concerning closure decisions, which are made in the order received. Gowns are not required.