The rule of stare decisis

The rule of stare decisis (binding precedent)

Rossi Chiara [335407] | European private law | 15/05/2023

Summary

• Stare decisis..........................................................................2
• Meaning and relevance of stare decisis
• Value of the principle of stare decisis in Italian legal system..........................................2
• Case law......................................................................................................................... 3
• Differences between common law and civil law.............................................................4
• The doctrine of binding precedent: its limitations and the values promoted..................5
• The authority of non-binding principles..........................................................................8
• Law reporting................................................................................................................. 9
• Stare decisis in the American jurisdictional system......................................................11
• Final remarks………………………………………………………………………………………………………………..15

Stare decisis

Meaning and relevance of stare decisis

Stare decisis “is the doctrinal practice of applying precedents in the adjudication of later cases. This means a court is bound to follow the principle or rule of law arrived at in prior adjudication. In the first instance, this determination of law becomes binding on all other courts of equal or inferior ranking in its jurisdiction”1, and it is defined as “vertical constraint”. Precedent emerges from case law.

“Stare decisis et non quieta movere”. The meaning of is that, when a point of law has been settled by decision of a competent court, it will no longer be considered open to a new ruling by the same tribunal or those which are bound to follow its adjudication.

Chancellor Kent stated the reasons that underlie this rule: “A solemn decision upon a point of law becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favour of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. When a rule has been once adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error…”

Value of the principle of stare decisis in Italian legal system

To understand the importance and the value of stare decisis in Italian legal system, it’s necessary to start from the question that concerns the relationship between ius and lex.

1 Patrick S. O’Donnel, The Legal Doctrine of Stare decisis and Rationality: An Introduction, 2008

It is a cliché to think that in civil law systems, the case law isn’t a source of law (except for constitutional and European jurisprudence). Consequently, precedents have a persuasive value, but they aren’t binding. However, these considerations lead to inconsistency, considering that currently there is a gradual approach between common and civil law systems. It isn’t possible to deny a “creative purpose of the jurisprudence”, at least in the cases where lawmaker prescribe general clauses permitting himself to the interpreters to specify the general norms. “For the trial judge the persuasiveness of the binding precedent depends on not only from the mere force of arguments, (…) but also from the risk of seeing a decision reformed or overturned in next judgments, different from the widespread orientation in the jurisprudence of legitimacy”2.

To be influent the precedent needs to have persuasion, so the precedents’ systematic impact on the Italian legal system can be different.

About the Italian Highest appeals court, the necessity to consider its own precedents is settled in its nomophylactic function, and in the consequent necessity to guarantee certainty and equity in the legal system.

The bond that originates from the precedent, is a system’s bond: every decision inserts itself in a case law’s flow, and shapes the legal system. Consequently, it is necessary to maintain a minimal systematic coherence.

Those considerations don’t remove the right-obligation of the judges to criticize old jurisprudential orientations, that appear to them not persuasive at all. But they have to do it explaining the reasons behind their belief.

However, the increasing number of suits and the consequent increasing number of judicial decisions, distress the coherence of the system and increase the probability of decisions with different results. To some extent, the remedial interpretation is encouraged, but there is also a dissenting push due to the excessive and thorough lawmaker’s interventions, that influences negatively the organicity and on the systematic approach of the legal system.

The vitality of the society increases the necessity of law’s certainty associated with the necessity to guarantee the coherence of the growing institutional and regulatory framework (often obtained in an inconsistent way). In this context, case law is destined to be late compared to the rules’ rapid obsolescence, therefore jurisprudence gives valid answers for the past, rather than future or present. In this perspective, case law’s certainty couldn’t be enough to assure law’s certainty.

Case law

Even if most laws are enacted by Parliament, in a common law system the courts can also develop the law. Case law is law that is based on judicial decisions, and it concerns disputes resolved by courts using the concrete facts of a case; statutes and regulations are written abstractly. Case law refers to the collection of precedents and authority set by previous judicial decisions on a particular issue. In that sense, case law differs from one jurisdiction to another.

2 Renato Rordorf, “Stare decisis: osservazioni sul valore del precedente giudiziario nell'ordinamento italiano”

Regarding to case law’s topic, European law reflects on Member States’ legal systems through principles and rules established by the European Court of Justice. The case law of the European Court of Justice regulate the relationship between European Union and Member States: for instance, the principle of primacy. The application of those principles is delegated by the European Court of Justice to the national judges.

Differences between common law and civil law

One of the most important difference between today’s civil law and common law systems is that (even with exceptions) common law systems lack a categorical codification of laws, therefore the legal system is entirely determined by case law.

Civil law systems are code systems, where there aren’t strict rules on the binding force of precedents (except for constitutional adjudication), and where is effective the principle “without a provision, there is no law”.

Civil law’s legal system is characterized by the codification of its core into a referable system which serves as the primary source of law. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. The Constitution is always provided and precedent is only used to determine administrative or constitutional court matters. Concerning the role of jury, its opinion may not have to be unanimous. Laws vary by state and country; juries are present almost exclusively in criminal cases, and virtually never involved in civil actions. Judges ensure the prevalence of the law. The sources of law are: constitution, legislation (statutes and subsidiary legislation), customs, international laws.

On the other hand, common law’s legal system rest is grounded on case law, which is law developed by judges through decisions of courts and similar tribunals. Judges’ role is to make rulings, to sets precedent, to decide matters of law and, where a jury is absent, they also find facts. Precedents are used to rule on future or present cases, and juries are composed only of laypersons, and never judges. In the United States, juries are employed in both civil and criminal cases. Their function is to weigh evidence presented to them, and to find the facts and apply the law. The sources of law are: constitution, legislation, judicial precedents, customs, conventions, international laws.

Both systems have similar sources of law, but they approach regulation and resolve issues in different ways, from different perspectives. Today the difference between common and civil law systems is in the actual source of law.

Common-law systems make refer extensively to statutes, but judicial cases are considered the most important source of law, allowing judges to actively contribute to rules.

In civil-law systems, codes and statutes are designed to cover all eventualities and judges have a more limited role of applying the law in a certain case. Past judgments are no more than loose guides.

The doctrine of binding precedent: its limitations and the values promoted

Old English decisions were merely based upon the court’s sense of justice. They represented the will of the King and enunciated no legal rules or reasons. During the nineteenth century, the legal climate changed by degrees. The necessity of certainty increased because of the increasing amount of commercial activity. The outdated concern for “form of action” became less intense, so paving the path for a more coherent common law. Law reporting was modernised by the establishment of an incorporated body charged with just this function. The hierarchy of courts developed and the judicial functions of the House of Lords were conferred to eminent lawyers. In this context the doctrine of binding precedent took root.

“Antecedent to the full-fledged doctrine of judicial deference to precedent was the belief common to English and French royal courts that like case should be treated, hence decided, alike. In application, this is known as the principle of consistency, and it is also a formal principle of equality. Reliance on these principles contributes to the relative autonomy and structural integrity (Dworkin 1986) of the legal system. Cass Sunstein cities the consequent triune virtues of “fostering planning, maintaining predictability, and protecting expectations” as integral to the belief that the law is, after all, a certain way (Sunstain 1996, 76)”3.

The exemplification of the principles of consistency and equality implicates legal practitioners in analogical reasoning, because two cases won’t ever be identical.

“Analogy is perhaps the defining feature of common law legal reasoning. Yet we have an impoverished understanding of how it operates in law”4.

The principle of stare decisis doesn’t demand to the court to follow the precedent of coequal, autonomous courts, inferior courts, or any courts outside the jurisdiction. The court could also freely bind itself (court can consider cases from other courts authoritative). At first sight a case may be distinguished if the court retains that the issue has been examined