Stare decisis
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Stare decisis (Latin: [ˈstaːre deːˈkiːsiːs], Anglicisation: [ˈstaːɹi dəˈsaɪsɪs], "to stand by things decided") is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "let sleeping dogs lie").
This doctrine is not held within most civil law jurisdictions as it is argued that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should rule in a predictable and non-chaotic manner. Therefore, judges' right to interpret law does not preclude the adoption of a small number of selected binding case laws.
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[edit] Principle
The principle of stare decisis can be divided into two components:
The first is the rule that a decision made by a higher court is binding precedent (also known as mandatory authority) which a lower court cannot overturn.
The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and do occasionally ignore.
[edit] Vertical stare decisis
Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The lower courts administer most day-to-day justice. The lower courts are bound to follow precedents established by the appellate court for their region and the supreme court. Appellate courts are only bound to follow supreme court decisions. The application of the doctrine of stare decisis from a higher court to a lower court is sometimes called vertical stare decisis.
[edit] Horizontal stare decisis
In the United States federal court system, the intermediate appellate courts are divided into "circuits". Each panel of judges on the court of appeals for a circuit is bound to follow the prior appellate decisions of the same circuit. Precedents of a United States court of appeals may be overruled only by the court en banc, that is, a session of all the active appellate judges of the circuit, or by the United States Supreme Court.
When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis. The State of New York has a similar appellate structure as it is divided into four appellate departments supervised by the final New York State Court of Appeals. Decisions of one appellate department are not binding upon another, and in some cases the departments differ considerably on basic points of law.
[edit] The last resort
The British House of Lords was not bound to follow its own decisions until the case London Street Tramways v London County Council [1898] AC 375. After this case, once the House had given a ruling on a point of law, the matter was closed unless and until Parliament made a change by statute.
This situation changed, however, after the issuance of the Practice Statement of 1966. It enabled the House of Lords to adapt English law to meet changing social conditions. In R v G & R 2003, the House of Lords overruled its decision in Caldwell 1981, which had allowed the House to establish mens rea ("guilty mind") by measuring a defendant's conduct against that of a "reasonable person," regardless of the defendant's actual state of mind.
However, the Practice Statement has seldom been applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times.[citation needed] They are reluctant to use it because they fear to introduce uncertainty into the law. In particular, the Practice Statement stated that the Lords would especially be reluctant to overrule themselves in criminal cases because of the importance of certainty in the law here. The first case involving criminal law to be overruled with the Practice Statement was Anderton v Ryan (1985), which was overruled by R v Shivpuri (1986), two decades after the Practice Statement. Remarkably, the precedent overruled had been made only a year before, but it had been criticised by several academic lawyers. As a result, Lord Bridge stated he was "undeterred by the consideration that the decision in Anderton v Ryan was so recent. The Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."[1] Still, the House of Lords has remained reluctant to overrule itself in some cases; in R v Kansal (2002), the majority of House members took the view that R v Lambert had been wrongly decided, but declined to depart from their earlier decision.
[edit] Application to the English legal system
The doctrine of binding precedent or stare decisis is central to the English legal system. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine, states that within the hierarchy of the English courts a decision by a higher court will be binding on those lower than it. This means that when judges try a case they will check to see if a similar case has come before a court previously, and if there was a precedent set by an equal or higher court, then the judge should follow that precedent. If there is a precedent set in a lower court, the judge does not have to follow it, but may consider it. The House of Lords however does not have to follow its own precedents .
Only the statements of law are binding, this is known as the reason for the decision or ratio decidendi, all other reasons are by the way or obiter dictum see Rondel v. Worsley (1969) 1 AC 191 . A precedent does not bind a court if it was found there was a lack of care in the original “Per Incuriam”, for example if a statutory provision or precedent had not been brought to the courts decision. If a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy, they may be persuasive but are not binding ,. Most importantly precedents can be overruled, by a subsequent decision by a higher court or Act of Parliament, Judicial ruling is retrospective, whereas Act’s of Parliament are always Prospective unless stated.
The last situation brings about the greatest problem of the precedent system, in that if a higher court overrules a precedent that is quite old, then it is very likely that many cases that have been decided upon that precedent will return to court. Therefore, it becomes increasingly unlikely that a precedent is overruled the older it is.
[edit] How judges interpret precedent
Judges in the UK use three primary rules for interpreting the law. The normal aids that a judge has include access to all previous cases in which a precedent has been set, and a good English dictionary.
Under the literal rule, the judge should do what the actual legislation says rather than trying to do what he or she thinks that it means. The judge should use the plain everyday ordinary meaning of the words, even if this produces an unjust or undesirable outcome. A good example of problems with this method is R v Maginnis (1987) in which several judges found several different dictionary meanings of the word "supply". Another example might be Fisher v Bell, where it was held that a shopkeeper who placed an illegal item in a shop window with a price tag did not make an offer to sell it, because of the specific meaning of "offer for sale" in contract law. As a result of this case, Parliament amended the statute concerned to close this loophole.
The golden rule is used when use of the literal rule would obviously result in an absurd result. The court must find genuine difficulties before it declines to use the literal rule.[verification needed] There are two ways in which the Golden Rule can be applied: the narrow meaning, and the wider meaning. Under the narrow meaning, when there are apparently two contradictory meanings to a word used in a legislative provision or it is ambiguous, the least absurd is to be used. For example, in Adler v George (1964), the defendant was found guilty under the Official Secrets Act 1920. The court choose not to take the wording literally. Under the wider meaning, the court may reinterpret the law at will when it is clear that there is only one way to read the statute. This occurred in Re Sigsworth (1935) where a man who murdered his mother was forbidden from inheriting her estate, despite a statute to the contrary.
The mischief rule is the most flexible of the interpretation methods. Stemming from Heydon's Case (1584), it allows the court to enforce what the statute is aimed at remedying rather than what the words actually say. For example, in Corkery v Carpernter (1950), a man was found guilty of being drunk in charge of a carriage, although in fact he only had a bicycle.
[edit] Evasion
And while lower courts are bound in theory by higher court precedent, in practice judges may sometimes attempt to evade precedents, by distinguishing them on spurious grounds. The appeal of a decision that does not follow precedent might not occur, however, as the expense of an appeal may prevent the losing party from doing so. Thus the lower court decision may stand even though it does not follow the higher court decision, as the only way a decision can enter the appeal process is by application of one of the parties bound by it.
[edit] …and resistance
Occasionally, the application of prior case law results in court decisions in which the judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent, that is, the issue at hand was already decided by a higher court. Note that binding precedent is thus distinct from stare decisis, which are decisions from lateral courts, lower courts, or the same court, and affords deviation based upon "compelling justification" (see Hilton v.s. Carolina Pub. Rys. Cmsn., 502 U.S. 197, 202, 112 S. Ct. 560, 565 (1991).)
[edit] Glitches
In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last resort, and are normally required to defer to the precedents of intermediate state courts as well.
Courts may choose to follow precedents of other jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is followed on the basis of the soundness of its reasoning will be called persuasive authority — indicating that its effect is limited to the persuasiveness of the reasons it provides.
[edit] Stare decisis in civil law systems
Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. In theory therefore, lower courts are generally not bound to precedents established by higher courts. In practice, the need to have predictability means that lower courts generally defer to precedents by higher courts and in a sense, the highest courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.
The doctrine of stare decisis also influences how court decisions are structured. In general, court decisions in common law jurisdictions are extremely wordy and go into great detail as to the how the decision was reached. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent in future cases.
By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.
In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) put less emphasis of the particular facts of the case than common law courts, but put more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.
[edit] Originalism and stare decisis
Originalism - the doctrine that holds that the meaning of a written text must be applied - is in tension with stare decisis, but is not necessarily irrevocably opposed. As noted at top, "Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law"; Justice Antonin Scalia argues in A Matter of Interpretation that America is a civil law not common law nation, and with that in mind, it should come as no surprise that originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the constitution. However, Originalism being a theory of interpretation rather than construction, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text is open to alternative constructions, past precedent is generally seen as a valid guide, with the qualifier being that it cannot trump what the text actually says.
Some originalists go even further. In his confirmation hearings, Justice Clarence Thomas answered a question from Senator Strom Thurmond about his willingness to overturn precedent thus:
- I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case indirect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.[2]
Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right." [3]
Professor Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence:
- American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision....[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedents that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law....Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations" .... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedents that misinterpreted it....Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions....Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedents. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.[4]
Both originalists and non-originalists have agreed that the principle of stare decisis is most flexible in constitutional cases:
- Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.... This is strikingly true of cases under the due process clause. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407, 410 (1932) (Brandeis, J., dissenting), cited in State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Planned Parenthood v. Casey, 505 U.S. 833, 854-855 (1992) (declining to reconsider whether abortion is a due process right).
It is useful to keep in mind that the judicial oath is to the Constitution, rather than to the U.S. Reports, and therefore when the two are demonstrably in conflict then the former may prevail over the latter.
[edit] Pros and cons
There is much discussion about the virtue and irrationality of using case law under such a system. Supporters of the system, such as minimalists, argue that following precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a previously decided case. An argument often used against the system is that it is undemocratic as it allows unelected judges to make law, or that it preserves wrongly decided cases. A counter-argument (in favor of the concept of stare decicis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to overturn precedents with which the judge disagreed.
[edit] References
- ^ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 25. London: Hodder Arnold. ISBN 0-340-89991-3.
- ^ Thomas, Clarence (1991). [U.S.] Senate Confirmation Hearings. qtd. in On the Issues "Clarence Thomas on Abortion: Overruling previous cases is a very serious matter." Accessed 20:37, 22 September 2005 (UTC).
- ^ Ringel, Jonathan (2004). "The Bombshell in the Clarence Thomas Biography". Fulton County Daily Report.
- ^ Nelson, Caleb (2001). "Stare Decisis and Demonstrably Erroneous Precedents". Virginia Law Review, 84 Va L. Rev 2001.
[edit] Glossary
1) Obiter Dictum: an opinion voiced by a judge on a point of law not directly bearing on the case in question and therefore not binding.
2) Per Incuriam: refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant
3) Precedent: a statement made of the law by a Judge in deciding a case. Two types binding and persuasive. Binding precedent is one made by higher courts of law that a judge is obliged to follow. A persuasive precedent is usually made by lower courts that can be followed as guidance but courts are not required to do so.
4) Ratio Decidendi: The Reason for a decision: It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the principles of judgment for ratio decidendi stand as potentially binding precedent, through the principle of stare decisis
