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Stare Decisis


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Background

Stare decisis is a common-law concept derived from the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In common law legal systems, the judiciary plays an important role in creating law and interpreting legislative enactments. Under the principal of stare decisis lower courts must follow the decisions of their supervising courts as long as the two cases are factually identical. If the lower court is unable to distinguish their case from a controlling decision, the case holding is said to be binding on the lower courts. Lawyers often take great pains to separate the holding (which is binding on lower courts) from so-called dicta (language in the decision which is not binding on lower courts).

Proponents of stare decisis argue that the system leads to greater predictability. For others, stare decisis arguably leads to the perpetuation of irrational or wrongly decided decisions. In the United States it has been said that judges use stare decisis when it follows the outcome of the case they wish to see.

The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. ... Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. ... At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed. [1]

Strict Stare Decisis

Strict stare decisis refers to the idea that courts should always follow their own decisions and decisions of higher courts, regardless of whether those decisions are sound in judgment. The concept of strict stare decisis has generally been rejected by courts around the globe.

Horizontal Stare Decisis

Horizontal stare decisis refers to the idea that a court should be bound by its own decisions.

Vertical Stare Decisis

Verticla stare decisis refers to the concept that lower courts are bound by the decisions of higher courts.

Stare Decisis in Civil Law Jurisdictions

In comparison, civil law judges are generally not constrained by the decisions of higher courts. However in practice, the differences are often oversold. As a practical matter, both civil law and common law judges use horizontal and vertical cases to inform their own decisions. [2]

Country-Specific Application

Austria

The Austrian Civil Code specifically provides that the courts may look took other decisions "... where a case cannot be decided either according to the literal text or the plain meaning of a statute, regard shall be had to the statutory provisions concerning similar cases and to the principles which underlie other laws regarding similar matters."[3]

England

England formally abandoned the concept of strict stare decisis in 1966. [4]

France

The concept of stare decisis has not been formally incorporated into the French criminal justice system although as a practical matter, lower courts often follow the decisions of the higher Cour of Cassation (Appeals Court).

Germany

Although generally considered a civil law country, Germany has formalized stare decisis for cases decided by the German Federal Constitution Court in which decisions are binding "on the federal constitutional institutions, on the states and on all courts andagencies."[5]

Spain

In Spain "the Constitution is the supreme norm of the legal systemand is binding for all judges and courts, who shall interpret and apply laws andadministrative norms according to constitutional precedents and principles, inaccordance with the interpretation of them resulting from the decisions handed downby the Constitutional Court." [6]

United States

Stare Decisis plays a significant role in criminal jurisprudence in the United States with both horizontal and vertical stare decisis functioning at the state and federal levels. However, the United States Supreme Court abandoned a strict interpretation of stare decisis as early as 1938.[7].Increasingly, reliance on stare decisis is unnecessary as many states move towards formalized criminal procedure codes.

Notes

  1. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 (1992)
  2. Peczenik A, 'The Binding Force of Precedents', in: Interpreting Precedents: A Comparative Study,MacCormick ND, Summers RS (eds.), Ashgate Dartmouth, Sydney, 1997 at 461.
  3. Austrian Civil Code, Section 7
  4. Dawson's Settlement, Lloyds Bank, Ltd. v. Dawson and Others (1966) 1 W.L.R. 1234.
  5. German Federal Constitutional Court Act, Section 31(1)
  6. Organic Statute of the Judicial Power, Article 5.1 (Spain)
  7. See for example, Erie Railroad Company v. Tompkins, (1938) 304 U.S. 64, which overruled Swift v.Tyson, (1842) 16 Pet. 1, 10 L. ed. 865