Disputed Precedents

Disputed Precedents are those precedents whose authority has been formally challenged before the Court of Unseen Precedents and whose challenge has not been resolved, suspended, or withdrawn. They are neither void nor binding. They may be cited, but a citation of a Disputed Precedent must be followed, within the same breath, by the phrase "subject to dispute," a requirement set out in Fourth Concordance, Annex 9, and enforced irregularly by the clerks of the Amphitheatre of Precedents. A Disputed Precedent that is cited without the phrase does not cease to be Disputed; it merely makes the citing advocate the subject of a note in the Register of Unruly Citations, a volume kept in a locked cabinet on the eleventh landing and consulted by almost no one.

The category is a holding pen rather than a verdict. Nothing enters it permanently and nothing leaves it cleanly. The Index of Ambiguous Precedents, maintained by the Curator of Precedents, lists Disputed Precedents under provisional status alongside precedents that are ambiguous for unrelated reasons; the two are distinguished by a marginal mark, a small upright stroke known as the disputant's rule, which is applied in iron-gall ink and must be redrawn each time the page is recopied.

Origin and the First Dispute

The distinction between a disputed and an undisputed precedent is generally traced to the winter of the year the Tower records as 4 Precedents, when a question arose in the Hall of Precedents over whether a precedent issued by a court that no longer convened could still bind a court that did. The Clerk of Precedents at the time, one Marrow Fenn, declined to rule on the question himself and instead referred it upward, noting in the day-book that "the matter is not mine to close." Fenn's successor twice attempted to close it by administrative fiat and was twice overruled, first by the Court of Unseen Precedents and then by the Standing Precedents, which hold authority over Binding Precedents and are not easily moved.

By the time the dispute had acquired a docket number it had also acquired three sub-disputes, and the practice had become general. It is now estimated that somewhere between four and six hundred precedents are in dispute at any given moment, though the estimate is unreliable because the Index and the Central Registry of Precedents do not agree on how many there are and neither will concede the point to the other.

The Two Positions on Filing

Scholarly disagreement on Disputed Precedents concerns not their nature but their proper location. The Seventeenth Concordance, Annex 2, directs that a challenged precedent be removed from the main sequence and shelved instead in the Vault of Unsaid Precedents until its status is settled. The Nineteenth Concordance, Annex 2 — drafted, by its own account, to clarify the Seventeenth — directs the opposite: that nothing be moved, since "a precedent in dispute remains where it was, the dispute attaching to it as a shadow to a body" (Nineteenth Concordance, Annex 2, clause iv).

The two annexes have never been reconciled. In practice the staff of the Vault of Precedents follow the Seventeenth when the vault is being inventoried and the Nineteenth when it is being cleaned, a compromise informally attributed to the Keeper of Precedents and defended on the ground that an inventory is a statement of what is held and a cleaning is a statement of what is there. Disputed Precedents are not to be dusted while a challenge is open. This rule was introduced after a disputed leaf was found to have been wiped clean of its disputant's rule during routine work in the spring of the year 9 Precedents; the leaf was not lost, but the dispute had to be reopened at the cost of four hearings.

The Antechamber and the Problem of the Unspoken

Challenges are heard in the Antechamber of Unspoken Precedents, cleaned under the supervision of the Clerk of Precedents, and are often prolonged by the difficulty of establishing what was actually disputed. The Court of Unseen Precedents maintains that a challenge must name the ground of dispute with precision, and that a challenge naming no ground is not a Disputed Precedent at all but a Silent Precedent and should be transferred accordingly. Transfers of this kind are frequent and are frequently reversed.

The most protracted instance on record is the dispute over a precedent of the Court of Unseen Precedents concerning the conversion of precedents, which was challenged in the year 14 Precedents on the ground that it had itself governed the conversion of the precedent used to challenge it. The Court heard the challenge, sat for eleven sessions without reaching the merits, and eventually certified the underlying precedent in order to have something stable to dispute. The certification is recorded in the Vault of Binding Precedents with a note in the margin reading only "still disputed."

Relation to Other Classes

Disputed Precedents are not Certified Precedents and cannot become Binding Precedents while a challenge is open; nor are they Silent Precedents, though the boundary between the two is drawn differently in the Bureau of Unstated Precedents than in the Court. The Bureau treats any precedent that has been challenged and not answered within a year as silent by default, a position the Court has never accepted and has never formally rejected. A Disputed Precedent may nevertheless be argued before the Amphitheatre of Precedents and remains in force for the purpose of deciding whether a later precedent contradicts it, a rule that produces the occasional paradox of a precedent being disputed, uncited, and yet capable of defeating a new one.

Inventory

The following are held in the disputed sequence as of the most recent count, and are given here in the order in which they are shelved rather than the order in which they were disputed:

• The Fenn referral, with its three sub-disputes, undivided.
• The conversion precedent of the year 14 Precedents, certified and still disputed.
• The vanishing precedent, contested on the ground that the precedent had already vanished before it was challenged.
• A precedent concerning the cleaning of the Antechamber, disputed by the Clerk of Precedents and heard twice.
• The precedent on the citation of precedents, which is cited subject to dispute in the notice that announces it.

No Disputed Precedent has ever been resolved by the Tower as a whole. The Court's position, restated without variation, is that resolution is a matter for the Standing Precedents and that the Standing Precedents have not seen fit to speak. The Standing Precedents, for their part, have not seen fit to speak.