Stare Decisis is the doctrine stating the authority of rulings made by superior courts. See also D Pugsley, Two Systems of Precedent (1981) 15 The Law Teacher 7, 7: Indeed French courts cannot even simply rely on a precedent; they must justify their own decisions themselves.. To say that courts may follow wrongly decided precedents in order to foster the rule of law is not to say that they must. In any event, for now we need only to bear in mind that the specific content of the obligation to follow precedent is a matter of discussion in the common law. To do this, I posit what I will call the null model, under which courts are authorised to decide precedent-governed disputes without paying attention, in a normatively significant way, to relevant precedent. On the other hand, many scholars have focused exclusively on precedent in either the common law or the civil law. Stevens, Reasoning by Precedent (n 6) 218 characterises the situation of a later court that has not found a non-excluded reason against following precedent as having a binding reason to follow precedent. Judges under this contingent composition may treat the reason in favour of following precedent as a protected reason. The Latin term stare decisis refers to the doctrine of precedent, which obliges judges to make certain court decisions according to previous rulings made by a higher court in the same type of case. The ruling, the first of its kind, is reverberating worldwide, especially among young climate activists. Calls to force court appearances as Lucy Letby refuses to attend But I would hesitate to call this tendency a full-blown system of stare decisis. In particular, there are three rule-of-law values the advancement of which gives us reasons to reject the null model, and prefer instead one of the modes that I will propose.33 These are the values of stability, reliability and equality in the application of the law.34 I will briefly explain these values, and will then show the extent to which the null model runs counter to them. This is because, all else being equal, it is contrary to the rule of law to depart from relevant precedent without explaining why. But what is the specific law that would allow judges to reach legally justified decisions? Accordingly, not following precedent when it appears right to do so is a non-excluded reason.91 In contrast, in Young v Bristol Aeroplane Co Ltd,92 the Court of Appeal (Civil Division) declared itself to be bound by its own precedents, with three exceptions: (i) where two of these precedents would conflict with each other; (ii) where one of these precedents is incompatible with a decision of the House of Lords/Supreme Court; and (iii) where a precedent was given per incuriam. 4 Match criminal law: only the government can bring charges against an individual This distinction is based on Stevens, Case-to-Case Arguments (n 58) 4357, who distinguishes between weak and strong versions of the principle treating like cases alike. An excellent elaboration of laws claim to authority can be found in Gardner (n 9) ch 5. With some adjustments, an advocate of this model could rely on the following. SCOTUS uses specific factors to assess the strength of. See eg Lamond (n 7) 15, arguing that Any satisfactory view of precedent must see distinguishing as an integral part of it rather than as an add-on or quirk of the common law. But this creates a problem: how can this substantive analysis be compatible with the content-independent character of the same reason? For a helpful study, see Cross and Harris (n 2) ch II; Duxbury (n 2) 6792; Twining and Miers (n 55) 30412. In a nutshell, according to Perry, legal positivism (at least as presented by Raz) fails to account for what many common law courts do when they reason using precedents. As Neil Duxbury writes, Even a decision widely considered wrong might continue to be followed if people have reasonably relied on it arranging their affairs.70. A precedent may have pro tanto persuasive force, or it may have no force at all. This can affect reliability, for people rely on this de facto pattern instead of relying on the law itself.99. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. Under the persuasive mode, whenever a precedent-governed dispute arises, the later court has a bare reason to decide the same dispute in conformity with the precedent. The distinction between horizontal and vertical precedent does not play a crucial role in the valuable contributions of EM Wise, The Doctrine of Stare Decisis (1975) 21 Wayne L Rev 1043; Lyons (n 2); Alexander (n 2); G Lamond, Do Precedents Create Rules? (2005) 11 Legal Theory 1; J Horty, Rules and Reasons in the Theory of Precedent (2011) 17 Legal Theory 1; Varasa (n 2); Stevens (n 6). cf Wise (n 7) 10578. This possibility provides the conceptual basis for thinking that a particular model of precedent may exist. Both values demand that the content of the law remain stable over time, so that people can rely on it to adopt decisions. See eg C Perelman, The Idea of Justice and the Problem of Argument (J Petrie tr, Routledge & Kegan Paul 1963) 38; H Kelsen, Pure Theory of Law (M Knight tr, 2nd edn, University of California Pres 1967) 1412; P Westen, The Empty Idea of Equality (1982) 95 Harv L Rev 537, 551; J Raz, The Morality of Freedom (Clarendon Press 1986) 2201. Finally, there is the question of whether the authoritative mode entails judicial law makingat least in the robust form of a law-making power. Accordingly, the civil law may share features of the authoritative mode, while the common law may share ones of the persuasive mode.76, Under the authoritative mode, whenever a precedent-governed dispute arises, the later court has a protected reason to follow precedent. Stare Decisisa Latin term that means "let the decision stand" or "to stand by things decided"is a foundational concept in the American legal system. The relation between higher and lower courts need not be of adjudicatory hierarchyit could be of administrative hierarchy. The final decision, which affects equality but does not offer a justification, is legally justified. In most instances, the purpose of legal research is to find support for a specific legal issue or decision. To begin with, in many civil law countries the binding effect of precedents is usually reserved for the decisions of specific courts onlytypically, higher courts and constitutional courts. Raz, The Authority of Law (n 12) 185; Lamond (n 7) 3; Schauer, Thinking Like a Lawyer (n 8) 58. I will not explore these other approaches, but I do not think my account is incompatible with them. There is one caveat to bear in mind. In a relevantly similar case, a later court would thus not be able to say, at least not without justification, that the same object is not a wheelchair had the earlier court decided that it was. I believe a real tension may exist between de jure and de facto precedent-following when a statutory provision explicitly provides that judicial decisions are binding on the parties to the dispute onlyas in Chile; see n 14 above. There is no reason to think that the same could happen with respect to other legal systemscf Legarre and Rivera (n 12). If, say, there are four possible correct answers, the chances of parties getting things right is 25%, again ceteris paribus. The practice of following precedent aims to prevent the passage of time from making a difference to the treatment of two disputes that are relevantly similar. Take cases of statutory vagueness, or where there are various candidates for a correct interpretation of the statute, or where applying the norm would conflict with a moral consideration. Precedent is an important part of the common law system. As such, this reason can be outweighed by a more compelling reason. If, for instance, one has good reasons to pursue a particular project, a commitment can be a second-order reason to act on these reasons. cf L Green, Law as a Means in P Cane (ed), The HartFuller Debate in the Twenty-First Century (Hart Publishing, 2010) 22; Green, Law and the Role of a Judge (n 38) 335. Assume, further, that with time you have come to realise that it was never right to allow Claudia to drink wine at such a young age. Attorneys will use precedent from previous cases to argue for their clients. Much of this literature dates back to the first half of the twentieth centuryand even before. What exactly does the obligation to follow precedent consist of? In some exceptional cases, the legal system may authorise some courts to act on the otherwise excluded reason of disagreeing with the precedents substantive merits. These could be, for instance, cases where the later court knows about the existence of a precedent, but it does not show why the precedent will not be followed. We also have a rare first-year clinic, in which students practice before an administrative law judge. Its normative effect is twofold: for the later court, a reason otherwise excluded is a non-excluded reason. Youths sued Montana over climate change and won. Why it matters. - The The Importance of Precedent When it comes to why this legal construct is so important, it comes down to how judges build case law, which in turn, become informal laws based on the common law of precedent. First, legal systems have, all else being equal, an interest in preventing judges from making creative innovations in the law. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. See eg D Lyons, Formal Justice and Judicial Precedent (1985) 38 Vand L Rev 495; F Schauer, Precedent (1987) 39 Stan L Rev 571, 595602; L Alexander, Constrained by Precedent (1989) 63 S Cal L Rev 1, 26 and 51; R Cross and JW Harris, Precedents in English Law (4th edn, Clarendon Press 1991) 1112; N Duxbury, The Nature and Authority of Precedent (CUP 2008), ch 5; L Alexander and E Sherwin, Demystifying Legal Reasoning (CUP 2008) 357; J Waldron, Stare Decisis and the Rule of Law: A Layered Approach (2012) 111 Mich L Rev 1, 31; N Varsava, How to Realize the Value of Stare Decisis: Options for Following Precedent (2018) 30 Yale JL & Human 62, 703. The null model, as such, is a way to appreciate these values by conceiving of a legal system where the same practice does not exist. Precedent. Interpretation appears to blur or even erase the line between the separate law-finding and law-creating roles which many legal positivists ascribe to judges, and the fact that courts always seem to be able to decide cases by interpreting the law may also seem to cast doubt on the idea that the law is incomplete, and hence that judges sometimes . But things are more complex when it comes to case law. Possibly yes, if such a decision is treated as an exception.50 But where there is a systematic and widespread practice of giving a different treatment to two cases that are legally the samethe past and present casespeople might have a reason not to form any expectations whatsoever. Even in that scenario there might be room for various alternatives, depending on, say, whether the past decision was reached by a clear majority, a prestigious judge concurred and so on. Subsumption can be a straightforward or complex process, depending on whether it is clear or disputed that the facts of the case fall within the norms scope. And the rule of law is an ideal worth pursuing. Doctrine of Stare Decisis. He filed an amicus brief on behalf of constitutional law scholars in support of the unions in Friedrichs v. California Teachers Association, on which this essay is based. Given this disagreement and variety of practices, and also bearing in mind that the argument in this part is not about what the civil law is or is not today, I will rely on a rather classic approach to precedent-following in the civil law. Contrary to this state of affairs, as I have argued, equality requires later courts to give reasons why they will depart from past decisions. Here, a precedent should be taken to mean a past decision or past case that is relevantly similar to the case at hand. In F Schauer, Thinking Like a Lawyer (Harvard UP 2012) 412, Schauer claims that the justifications for precedential constraint [vertical stare decisis] are fairly obvious: lower court judges are expected to follow the instructions of those courts above them in what the military calls the chain of command. Unlike before, where I proceeded bottom-up,46 this time I will proceed top-down. In particular, it is vital that the reason to follow precedent does not depend on whether a later court agrees with the precedents correctness. Both have been a debated topic in the literature. Sometimes, however, courts will have to depart from past decisions, and this is particularly true with respect to those decisions that are notoriously suboptimalie are notoriously unjust, arbitrary or otherwise unsound. Montana kids win historic climate lawsuit - here's why it could set a The argument in this section is as follows. First, courts always have a reason to decide precedent-governed disputes by following precedent. Consistent with familiar terminology, I will call them persuasive and authoritative.4 These modes are not necessarily depictions of what particular courts do, but they provide us with a valuable philosophical foundation for assessing whether what these courts do is desirable or not. This, in turn, may create a contingent pattern of deciding precedent-governed disputes in conformity with the precedent. If they count, then we often say that judges have an obligation, though not necessarily a conclusive one, to decide the case according to the result provided by the norm.38. Finally, the later court could adjudicate under the persuasive mode, but there might be responsibilities for doing so, particularly if that court has a legal duty to adjudicate under the authoritative mode. This non-contingent reason is a minimum requirement of the rule of law. Or is such an obligation, as Grant Lamond claims, to treat the precedent as correctly decided on its facts?82 The fact that this debate is still ongoing makes it difficult to provide a clear-cut answer.83 My own view, which I hope to provide in detail soon, is that the obligation of a later court is to respect the decision of the earlier court to treat certain established facts as material, to give them a particular legal significance and to decide on the balance of reasons.84 This view would lean towards that of Lamond and later developed by John Horty.85 It can be summarised as follows: the later court must render a decision that is consistent with the authoritative treatment that the earlier court gave to the facts or factors of the precedent, as these were reported. On the idea of a second-order reason, see text to nn 64, 65 and 66 below. What is needed, in order to establish the non-contingency of the reason in favour of following precedent, is the normative backup of a positive second-order reason.47 In the second subsection, I will argue that a legal systems commitment to the rule of law can do this work. In the next section, I will lay out the structure for articulating two modes of precedential reasoning that, unlike the null model, advance the rule of law. A Marmor, Should Like Cases Be Treated Alike? (2005) 11 Legal Theory 27, 29. cf Hart (n 10) 128; L Duarte dAlmeida, Allowing for Exceptions (OUP 2015) 184. The court would be acting on a reason that was excluded.93. His objection would backfire if his own account is affected by a set of plausible counterexamples. There is a minimum requirement of the rule of law in regard to precedent, and I have called it the persuasive mode of precedential reasoning. When this happens, the later court cannot distinguish, meaning it must replicate a decision that is substantively incorrect. Question for courts While the articles from legal scholars amount to opinions at this time, it's possible the court systems in various states could be asked to look at Trump's viability as a . But it is important not to take it for grantedobserving also, as others have done,49 that sometimes following precedent may not necessarily advance the rule of law. Thus, were the Court of Appeal to overrule one of its precedents because it appears right to do so (as in the Practice Statement), that decision would be incompatible with the authoritative mode. The legal philosophy of Ronald Dworkin is one alternative. The answer to this question inevitably varies across different legal systems, as it depends on the sources of law in the particular legal system under consideration. All these outcomes, further, are justified by law. In relation to the civil law, see Merryman and Prez-Perdomo (n 17) 47; Peczenik (n 19) 461 and 4656. Finally, there are two features that distinguish the persuasive mode from the null model. Now, we should bear in mind two things. Let us start with stability and reliability. For various reasons, most of which have to do with effective action-guiding and better coordination between courts, a legal system may restrict the scope of the precedents that later courts must follow. The question is whether the non-contingent reason to follow precedent should stay as a minimum requirement or should be reinforced. Click the card to flip 1 / 13 Superior court rulings serve as precedents that inferior courts are obliged to follow in a common law system. Under the persuasive mode, later courts do not have an obligation to follow precedent. Search for other works by this author on: The Author(s) 2021. But even within one of these traditions we may find courts treating precedents differently. Now, the logic of grounding precedent-following in the rule of law does not necessarily preclude bottom-up stare decisisie higher courts being bound by the precedents of lower courts. Montana judge hands young plaintiffs significant victory in landmark See eg Tamanaha (n 21) 119; T Bingham, The Rule of Law (Allen Lane 2010) ch 9; Waldron, The Concept (n 21) 78; J Waldron, The Rule of Law and the Importance of Procedure (2011) 50 Nomos 3, 6. There is no denying that the law may offer less guidance, and thus affect reliability, without authoritative applications of it binding later courts. According to Twining and Miers (n 55) 2867, the Court of Appeals has restated aspects of the doctrine laid down in Young v Bristol Aeroplane, allowing for departures from relevant precedent when the previous decision is manifestly wrong. For example, an authoritative treatment in one common law country may appear as a persuasive treatment in another common law country. For ease of reference, I will follow this familiar terminology, hoping to provide a consistent understanding of what it means to treat precedents as either authoritative or persuasive. The case, Held v. State of Montana, was based on . An attorney uses a previous state court ruling to argue his client's case. That decision was, in other words, a mistake. If the precedent and present cases are legally the same, but they receive different treatment, can people form reliable expectations concerning the ways in which these types of cases will be decided? It is true that the civil law is changing towards giving precedents a more decisive role (see note 13). But once these central features are picked, there is room for a sensible detachment from practicesee n 76 below. Raz, The Authority of Law (n 12) has argued that, at least in England, the rule of recognition gives legal validity to authoritative precedents. In a hard case, the null model entails a probabilistic lottery. But where the application of the relevant norm entails a hard case, this reason for belief might become weaker, or even disappear, if the court adjudicates under the null model. HLA Hart, The Concept of Law (3rd edn, Clarendon Press 2012) 7. cf R Pound, Justice According to Law (1913) 13 Colum L Rev 696. See Lyons (n 2) 51112; Schauer, Precedent (n 2) 5978; Duxbury (n 2) 163. In sum, the null model can be lawful, and supported by various reasons, but there are important reasons as well for thinking that it fails to live up to the rule of law. Essentially, it means that legal research is the process you use to identify and find the lawsincluding statutes, regulations, and court opinionsthat apply to the facts of your case. Many of our normative practices are influenced by the force that past decisions exert on similar, future situations, in favour of reaching the same result as before. The purpose of stare decisis is to promote consistent, predictable rulings on cases of similar nature. On the various duties of judges, see eg L Green, Law and the Role of a Judge in K Ferzan and S Morse (eds), Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S Moore (OUP 2016) ch 22. For example, if the issue under consideration is so sensitive, reaching a different outcome may affect reliability in ways that are more prejudicial to the legal system than deciding the case in a substantively correct manner. For a somewhat sceptical analysis, in US law, of the arguments in favour of vertical stare decisis, see E Caminker, Why Must Inferior Courts Obey Superior Court Precedents? (1994) 46 Stan L Rev 817. Nurse convicted of killing seven babies is third murderer in recent times to avoid hearing Lucy Letby has become the latest killer to refuse to attend their sentencing, amid calls for a new law to . (To this extent, the relative force of judicial decisions is also present in the common law.) Porque es importante que existan leyes A.porque establecen como esperan las autoridades que se comporten las personas B.porque regulan la convivencia protegen los derechos y establecen la obligaciones de las personas C.porque establecen lo que no se debe hacer los castigos y los derechos de las autoridades One challenge that arises immediately is the following: how can we justify later courts that knowingly replicate incorrectly decided precedents? I will not be arguing that courts should always have an obligation to follow precedent, but only a pro tanto and non-contingent reason. The existence of this reason increases the degree of reliability given to parties vis--vis the null model. Why is precedent so important? An important consequence of precedents' practical authority is this: since courts are bound to apply the law, and since earlier decisions have practical authority over the content of the law (i.e., over what is the law), later courts are bound to follow the decisions of earlier cases. Yet the problem with this approach is that an incorrect precedent cannot become correct simply by virtue of being followed in the future. I do not think there is a unique answer here; it depends on the history of the legal system, its legal tradition and practices, and the values people in that system hold dear. Finally, the law should have a democratic character. Somerville College, University of Oxford. Email: sebastian.lewis@law.ox.ac.uk. In relation to the persuasive mode, there is no denying that if the dispute at hand and the precedent are legally the same, then both can be adjudicated alike. Following familiar terminology, I will call them persuasive and authoritative.74 I will start with the latter, because it presents complexities worth disentangling from the outset. This reason is a minimum requirement of the rule of law, and in some cases this reason may be reinforced in the form of an obligation. This reason entails both a reason to decide the dispute in conformity with the precedent and an exclusionary reason not to decide the same dispute on certain reasons against following the precedent. Since there is significant literature on the topic,1 I will do this by defending two connected and novel claims. Possibly in a legal system that attaches significant value to having democratic legislation as the main source of law, the reasons for leaning towards the persuasive mode are more demanding. Stare Decisis - Definition, Examples, Cases, Processes - Legal Dictionary Accordingly, the standards by which the law will guide conduct should be clear, public, general, prospective and stable, so that people may know in advance how to plan their lives under the law.22, Similarly, the rule of law requires minimum procedural conditions that courts should observe when they administer justice, in order to ensure parties a fair hearing.23, Finally, the rule of law is also associated with substantive conditions for the existence of the law. See K Stevens, Reasoning by PrecedentBetween Rules and Analogies (2018) 24 Legal Theory 216, 217. Legal precedent - Simple English Wikipedia, the free encyclopedia The null model authorises courts precisely to dispense with this justificatory requirementnamely, of having to argue why they will depart from the decision of the earlier court. This reason could be very weighty if, say, the precedent originates from the highest tribunal in the land. To illustrate the problem, it will be useful to distinguish between two versions of following precedent: weak and robust.60 According to the weak version, a later court has a reason to follow precedent only if the precedent was correctly decided. When it is clear, we can think of the case, at least in respect to subsumption, as an easy one.
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