A defense now proffered by the Presiding Bishop and her supporters is that the same procedures were followed in the recent cases of Bishops Davies and Moreno. Past violations of the canon\u2019s clear provisions are said to justify current ones. In considering this defense, it is necessary to distinguish three senses of \u201cprecedent\u201d\u009d in legal usage. One is the well-known sense of precedent as a formal ruling on a legal issue by a competent juridical body. This is clearly not the case here as no one has suggested that the prior cases were determined to be canonical by any body reviewing the canonical issues. These cases are not offered as reasoned legal rulings, but as a fait accompli.<\/p>\n
A second sense of precedent is that in which the actions of parties to a contract are used to interpret terms that are vague or ambiguous. In civil law this concept is referred to as \u201ccourse of performance,\u201d\u009d and this type of precedent is often used as an aid to interpretation for vague or ambiguous contractual terms such as those relating to timeliness or quality. For example, terms like \u201cpromptly\u201d\u009d or \u201cstandard grade\u201d\u009d are ones that can sometimes be interpreted by the parties\u2019 performance. The applicability of this principle can be seen in the present context by noting that the meaning of the vague term \u201cforthwith\u201d\u009d in Canon IV.9 is given meaning by the Presiding Bishop\u2019s own action in giving notice to Bishop Schofield within 48 hours of receiving the certification from the Review Committee. But the requirements of inhibition in IV.9 and for consent by a majority of the whole number of bishops entitled to vote are not vague or ambiguous terms. They are expressed in mandatory language using precise terms that are clearly defined and used elsewhere in the canons. Express terms control when in conflict with arguable interpretations based on prior actions.<\/p>\n