Spanish Lakes Alligator Attack, Can Orthodox Monks Marry, Articles W

Oxford University Press is a department of the University of Oxford. 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. 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. Section 4 argues that one distinctive way to advance the rule of law is by requiring courts to always put in the balance the reason in favour of following precedent. 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. When, conversely, these two cases are legally different, a later court may distinguish. Courts apply principles from prior cases to the current case. Stare decisis is a rebuttable presumption in a civil law system, where judges interpret and apply written law to decide cases. Why are past cases important? - LegalKnowledgeBase.com A Dworkinian view of stare decisis was articulated by S Hershovitz, Integrity and Stare Decisis in S Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (OUP 2006) ch 5. Thus, for reasons external to the norm itself, there can be cases that fall within the norms scope, but which may receive a different treatmentdespite the fact that in virtue of the norms generality they should not.37, This difference of treatment can be explained by the discretionary element entailed in the application of a norm. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (, Metarules, Judgment and the Algorithmic Future of Financial Regulation in the UK, Law and Stock Market Development in the UK over Time: An Uneasy Match, Against the Spirit of the Age: The Rationale of Relational Contracts, About University of Oxford Faculty of Law, https://plato.stanford.edu/archives/sum2020/entries/rule-of-law/, https://creativecommons.org/licenses/by/4.0/, Receive exclusive offers and updates from Oxford Academic. Vertical stare decisis, by contrast, is the authoritative effect that precedents of higher courts have on lower courts. I will not explore these other approaches, but I do not think my account is incompatible with them. See K Stevens, Reasoning by PrecedentBetween Rules and Analogies (2018) 24 Legal Theory 216, 217. To the extent that courts are bound by precedent, those precedents may be treated as part of the law.95 Where this is so, every court with the power to set a precedent has also, in theory, the power to change the content of the law.96 Yet the authoritative mode reduces this margin for potential change by requiring later courts to decide the case at hand in conformity with the precedent. Raz, The Morality of Freedom (n 36) 388; R Chang, Hard Choices (2017) 3 Journal of the American Philosophical Association 1, 17. Aerial footage shows the tree charred but still standing amid a downtown devastated by fire. On the House of Lords Practice Statement, see ibid 12349; W Twining and D Miers, How to Do Things with Rules (5th edn, CUP 2010) 2835. In order to avoid this, judges should not follow precedent. The proviso of time is important because it would not seem plausible to think that a legal system has achieved stability in relation to a specific matter if the content of the law on that matter changes too frequently. 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. Suppose, to simplify the argument, that in 2019 the Supreme Court of an imaginary country handed down a decision that many respected judges and scholars consider mistaken on good grounds. Courts, in other words, can affect reliability (what people may think the content of the law is) without changing the law itself. I will also ignore alternative ways of speaking of precedents, such as the erga omnes force of judicial decisions,5 the constant jurisprudence of courts and the common law. But since this reason does not exist in the null model, parties are left to whatever assessment of the correct scenarios the court deciding the case makes. The null model, by contrast, seeks to capture those situations in which the existence of a relevant precedent is another non-normative fact of the world: the precedent does not even tip the balance of reasons in favour of reaching the same outcome as before. 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. Now, because some may think that stability has value in its own right, I have decided to keep stability and reliability as separate values. [1] [2] [3] Common-law legal systems often view precedent as binding or persuasive, while civil law systems do not. 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. Otherwise, we face two crucial objections: one descriptive, the other normative. The argument, to be sure, is about what we may learn from such an approach, namely that the null model is conceptually possible. This is the view associated with the well-known accounts of L Fuller, The Morality of Law (Yale UP 1969) ch 2; Raz (n 12) 21314; J Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011) 2703; J Rawls, A Theory of Justice (first published 1971, Harvard UP 1999) 23543. Since stability is instrumental to reliability, think of the problem in the following way. On the disputed nature of the rule of law, see J Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)? (2002) 21 Law and Philosophy 137, 159; P Burgess, The Rule of Law: Beyond Contestedness (2017) 8 Jurisprudence 480, 481. But in order for the law to allow this, the law cannot suffer changes too frequently. Unlike before, where I proceeded bottom-up,46 this time I will proceed top-down. Why precedent is the source of law? But we need not make too much out of this conceptual possibility. Similarly, we may find arguments relying on the overall efficiency of the systems adjudicatory process. In particular, it is vital that the reason to follow precedent does not depend on whether a later court agrees with the precedents correctness. For the legal system, the overruled precedent loses its erga omnes force. On the persuasive mode, precedents are not, strictly speaking, part of the law, because they lack one essential feature that most legal norms (claim to) have: to provide authoritative guidance.97 Hence, it may seem that courts under this mode cannot change the content of the law when they hand down rulings. precedent | Wex | US Law | LII / Legal Information Institute But Perrys objection would misfire if there are some common law courts in the world that treat precedents as giving rise to exclusionary reasons. Thus, any time a precedent-governed dispute arises, the content of the law will remain somewhat stable, because the later court will have an obligation to follow precedent. Common law is a system of law that is based on the decisions of judges. It is a Latin term that means " to stand by the things that have been decided ." But this change reveals a point of departure: the possibility that the existence of a precedent may make no normative difference in the decision of a later court. In the persuasive mode, this obligation does not exist, at least not strictly speaking. As a positive second-order reason, therefore, a commitment is a premise that can be added to the normative background to justify what would otherwise be unjustified. Accordingly, when two disputes are legally the same, but they arise at different times, one way to deliver consistent treatment is to decide the new case in conformity with the precedent. Precedents are often given legal status, but they are not created by a democratic process. It is true that the civil law is changing towards giving precedents a more decisive role (see note 13). In the common law, the majority of scholars think that distinguishing is an integral part of the practice of following precedentand hence the obligations disjunctive form.80 Some scholars, however, think that later courts should not distinguish.81. cf Wise (n 7) 10578. There is significant literature on the various tests for discovering the ratio decidendi of a case. The possibility of the null model is valuable for two reasons. On the other hand, it is not clear whether following precedent has value in its own right, or whether we follow precedent in order to advance other values. To illustrate: by virtue of the 1966 Practice Statement,90 the House of Lords (today the UK Supreme Court) is authorised to overrule its own precedents when it appears right do so. On top of this nucleus, the later court may add extra weight if it considers that the dispute was, say, rightly decided, or it may add no further weight at all if the reverse holds. 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. I do not think, based on the relevant literature,48 that this claim is controversial. How can this reason allow for various weights depending on whether the later court agrees with the substance of the precedent? Take the House of Lords 1966 Practice Statement: precedents of that court are normally binding (on the same court), but they admit departures when it appears right to do so.53 It seems difficult, and perhaps self-defeating, to anticipate all the necessary and sufficient conditions for establishing when it is right for that court to depart from precedent.54 For this reason, a legal system will most likely delegate this determination on judges themselves, who will balance tailored justice with stability and reliability, often leaning towards the latteras the same House of Lords (today the UK Supreme Court) has shown over time.55. 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. 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. On top of this requirement, a legal system may reinforce its commitment to this ideal by requiring courts to treat the same reason as an obligation. Symposium: The importance of respecting precedent - SCOTUSblog As it relates to precedent, equality requires courts to limit the menu of possible correct answers that, absent relevantly similar cases decided before, they would otherwise have. Sebastian Lewis, Precedent and the Rule of Law, Oxford Journal of Legal Studies, Volume 41, Issue 4, Winter 2021, Pages 873898, https://doi.org/10.1093/ojls/gqab007. On the idea of a second-order reason, see text to nn 64, 65 and 66 below. This situation fosters reliability: people know in advance what courts have an obligation to do when they face a precedent-governed dispute. One way to avoid this non-democratic upshot is by giving judicial decisions relative force only, thus restricting the influence of precedents on later courts. The first argument is that, contrary to what may happen in practice, whenever a precedent-governed dispute arises, the later court always has a reason to decide that dispute by following precedent. By contrast, the same reason may be normatively weaker if, say, the precedent was reached by a lower court, or a court composed by one judge only. Consider stability and reliability. Discussing Dworkins views on precedent, see also S Perry, Judicial Obligation, Precedent and the Common Law (1987) 7 OJLS 215, 2236. The ruling, the first of its kind, is reverberating worldwide, especially among young climate activists. The authoritative mode often, but not necessarily, entails a view where precedents are part of the law. What is Case Law? | Canan Law Here's why it matters. I shall pursue the opposite strategy: the reason to follow precedent is content-independent, in the sense that later courts have it whether they agree with how the precedent was decided or not. Consider the following case: Perry (n 32) 2304 attributed to Raz a positivistic account of precedent-followingone where later courts have exclusionary reasons to follow precedent. See eg ibid 523: On the protected reason model developed in the previous section, a past decision binds a subsequent decision-maker when the rule relied on in the previous decision is applicable to the factual scenario that applies in the subsequent case. 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. Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals.These past decisions are called "case law", or precedent. If the dispute at hand and the precedent are legally the same, then the later court has an obligation to hand down the same decision. precedents Flashcards | Quizlet Both values demand that the content of the law remain stable over time, so that people can rely on it to adopt decisions. Traces of this view can also be found from Lord Mansfield in Bingham (n 23) 38 and Hayek in Tamanaha (n 21) 66. 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.. This can affect reliability, for people rely on this de facto pattern instead of relying on the law itself.99. Since I take them to be part and parcel of the rule of law ideal, I will refer to them collectively as the rule of law.3 I argue that the principles of judicial transparency and good government strongly militate in favour of courts having to give reasons why they will not follow relevant precedent. What is the importance of judicial precedent? - LegalKnowledgeBase.com Many legal systems give erga omnes force to the decisions of specific courts. 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. The purpose of this section is to present some of the tools that are vital for determining whether there is a mode that should be preferred, and for eventually criticising a specific practice of precedent held by courts. Stare Decisis - Definition, Examples, Cases, Processes - Legal Dictionary Unlike the null model, these two modes are consistent with the rule of lawin fact, they are derived from this ideal. Madison Decision. By contrast, whether a norm is legal depends on whether it meets the criteria for legal validity given by the rule of recognition. 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. Some people, however, are starting to confront . If nothing in laws nature prevents courts from lawfully adjudicating disputes under the null model,20 then why doesnt any legal system have itat least officially? cf T Endicott, Vagueness in Law (OUP 2000) 191. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. To be sure, any descriptive account of what courts doeg how they reason using precedentsis potentially subject to counterexamples. We normally call these past decisions precedents, and when it comes to the law we often say that precedents influence the decisions of courts when relevantly similar disputes arise. In many cases, precedents are authoritative sources of law, in the sense that if the facts in a later case are legally the same as those of a precedent, the later court is often required to deliver the same decision. Accordingly, there are three options a lower court has when faced with a wrongly decided precedent: to distinguish; to follow the precedent and render yet another substantively incorrect decision; or to adjudicate under the persuasive mode. See eg Raz (n 12) 224; B Tamanaha, On the Rule of Law. Or not unless further premises are added to the normative background.63 A typical premise of this kind is a positive second-order reason for action.64 In general, first-order reasons are considerations in favour of performing or refraining from performing a certain action. Precisely because of this caveat, the claim is, I think, novel. Common Law as Differentiated from Civil Law. In these cases, commitments provide, as Ruth Chang writes, the grounds for new will-based reasons.67 Similarly, in virtue of a particular commitment, sometimes we see ourselves making decisions we would not otherwise make. Yet the question still remains open as to which of the two modes that are compatible with the rule of law should be preferred. The upshot is that the non-contingent reason to follow precedent is a minimum requirement of the rule of law. In Latin-America, similar examples can be found in: art 3 of Chiles Cdigo Civil; art 218 of Uruguays Cdigo General del Proceso; and art 17 of Colombias Cdigo Civil. But because this pattern is the result of a de facto contingency and not of a de jure obligation, the pattern may change, such as when the composition of the court changes. Under the strong version, the existence of a precedent-governed dispute triggers a non-contingent reason for action. When this happens, the later court cannot distinguish, meaning it must replicate a decision that is substantively incorrect. Porque es importante que existan leyes - Brainly.lat What is precedent and why is it important in court cases? The other facts of the case would provide the basis for the exclusionary reason; later courts are excluded from relying on reasons provided by features that were present in the precedent case to defeat the first-order reason for the result. Recently, Robert Mullins, Protected Reasons and Precedential Constraint (2020) 26 Legal Theory 40 has defended an account of what he calls the protected reason model of precedent.