Stare decisis
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Stare decisis (Latin: Template:IPA, Anglicisation: Template:IPA, "to stand by things decided") (more fully, "stare decisis et non quieta movere") 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.
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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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 which a lower court cannot overturn. This is similar to the Leninist principle of party organisation known as democratic centralism, in that they both insist that a commitment at only the highest level of an organisation is necessary to commit that organisation at every level, and that the dissenting minority may maintain a differing opinion but are required to obey the majority decision.
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.
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.
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.
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. They are reluctant to use it because they fear to introduce uncertainty into the law. In R v Kansal (2002), the majority of House members took the view that R v Lambert (a previous case) had been wrongly decided, but declined to depart from their earlier decision.
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.
…and resistance
Occasionally, the application of prior case law results in court decisions 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).)
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.
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.
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.Template:Ref
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." At one point, stare decisis was central to conservative judicial philosophy, but in recent years, the willingness to overturn a precedent seems to have become more closely related to political ideology. Template:Ref Template:Ref
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.
References
- Template:NoteThomas, 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).
- Template:NoteTemplate:Cite book p. 281 (according to Amazon's "Search Inside" feature).
- Template:NoteTemplate:Citepaper publisheraf:Stare decisis