University of Transnational Business Law

Precedent

by Roger Shiner
The Problem

Precedent is one of the main classical or traditional institutional sources of law (Shiner 2004, Chapter 3). The core content of reasoning from precedent is that the previous treatment of occurrence X in manner Yconstitutes, solely because of its historical pedigree, a reason for treating X in manner Y if and when X again occurs (Schauer 1987, 571). Reasoning of this sort is not confined to the law, although such reasoning finds in the law its most complex and formalized realization. In legal reasoning from precedent, a prior decision has weight simply from the fact of its having been taken; a hypothetical case of exactly the same profile would not have weight.

Reasoning from precedent can be contrasted with particularistic decision-making (Schauer 1991, 77–8). In particularistic decision-making, the decision is transparent to the background normative principles relevant to the decision (Schauer 1991, 85). The decision is simply a matter of applying the principles to the special facts of the particular case. In contrast, there are forms of decision-making in which decisions are not transparent to the background justifications. Rule-based decision-making is one such form. In rule-based decision-making, the particular case is decided by application of the rule: in circumstances C, do A; these are circumstances C; so I shall do A. There is no reference directly to whatever the background normative justification might be for having a rule `In C, do A’. It is a standing presumption of rule-based decision-making that there is some such background justification, but the justification plays no role in the actual decision to do A. Whether decision-making according to precedent is just a form of rule-based decision-making, it shares with rule-based decision-making the feature that decisions according to precedent are not transparent to their background justifications. `Decide now fact situation F for P, because Court C has already decided fact situations like F for P’ is not a form of reasoning that pays attention to why deciding for P in F is normatively justified.

Reasoning from precedent is an instance of so-called case-by-case reasoning. In case-by-case reasoning, `the process of argument is not a chain of demonstrative reasoning. It is a presenting and re-presenting of those features of the case which severally cooperate in favour of the conclusion ... The reasons are like the legs of a chair, not the links of a chain’ (Wisdom 1957, 157). Reasoning from precedent, therefore, is not the same as reasoning by analogy, at least on some standard accounts of analogical reasoning. Even though contemporary writers acknowledge that analogical reasoning is not the same as deductive or inductive reasoning, still the assumption is made that in some sense a formal statement of the rules of analogical inference is possible (Guest 1961, 190–7; Alexy 1989, 281–4; Brewer 1996). In case-by-case reasoning, the reasoning in principle has force independently of whether some scheme of formal rules can be constructed to rationalize it. The reasoner by juxtaposing B to A ultimately invites the reader or hearer to see that B is G. The epistemological core of reasoning from precedent  is the seeing of similarities and differences.

Treating precedent as a source of law is, with good reason, held to be a distinguishing characteristic of the common law, and this discussion is primarily about the common law. It is a commonplace that civil law systems do not recognize a doctrine of stare decisis, although it is also a commonplace that there exists a widespread practice in the civil law of in fact paying some attention to decisions in other cases (Merryman 1984, 47; Merryman, Clark and Haley 1994, 949–51).

Reasoning from precedent in the law is associated with the maxim stare decisis et non quieta movere or stare decisis, for short. Stare decisis is a normative practice, doctrine about how courts should reason, not one about how they do reason. Understanding how precedent functions as a source of law is a matter of understanding these norms.

There are therefore three matters to be discussed. The first deals with some of the technical details of stare decisis as an institutional practice. The second matter concerns the best way theoretically to understand the idea of a court being `bound’ by a prior precedent. The third concerns the question of the justification for a doctrine of precedent.
Discussion

i) Norms of the institutional practice. The central normative distinction in precedent is that between `binding’ and `persuasive’ precedent. If an existing case is for a court a binding precedent, then the decision in the precedent case is dispositive for the decision in the instant case. If an existing case is for a court a persuasive precedent, then the decision in the precedent case has some, maybe even considerable, weight for the decision in the instant case, but it is not as such dispositive. The downplaying of precedent as a source of law in civil law systems is a downplaying of stare decisis, the notion of binding precedent. Persuasive precedent plays a crucial role, as it does also in the common law (Glenn 1987; Bronaugh 1987).

A distinction should be drawn between vertical and horizontal bindingness. Vertical bindingness is something it only makes sense to speak of in relation to an institutional hierarchy of courts. Courts higher in the hierarchy establish by their decisions precedents for courts lower in the hierarchy. But stare decisis can operate `horizontally’ as well, in relation to the power of a court to depart from its own previous decisions. A court that has no such power is horizontally bound by precedent.

The idea of one court being `bound’ by another, or by its previous self, amounts to the more complex idea that it must either decide the instant case in the same way as the precedent case, or else distinguish the instant case from the precedent case (Simpson 1961, 171–5). Distinguishing an instant case from a precedent putatively binding upon it is an important function of common?law tribunals. Distinguishing is not to be regarded as something opposed to binding precedent but rather as part of that practice.

ii) The bindingness of precedent. How does a precedent have binding force? What makes a higher court’s decision relevant to the case in the lower court? The decision has to be one by the higher court on the same issue. But how is that determined? The chief device for managing issues of relevance in the area of common law precedent is the notion of the ratio decidendi of a case, literally the `principle of the decision’. The ratio(for short) is to be distinguished from an obiter dictum, an expression of opinion by a judge that is external to the dispositive reasoning. (See entry for RATIO DECIDENDI.)

Different theories have been propounded as to what underwrites the modality of necessity in binding precedent. It is implausible to see the necessity as that of logical deduction. The decision in one case does not entail a decision in another. Nor is it plausible to go to the other extreme and call the language of necessity illusory. In a case where there are two incompatible decisions, both from courts whose decisions are in a hierarchy of courts binding on a lower court, the lower court may be said not to be bound, but to have a choice between precedents. The normal case is clearly not like this highly unusual one.

A third and more plausible view about the bindingness of precedent would be that, though not illusory, it is felt or subjective only, simply a matter of judicial `comity’ – a matter of deference or respect, not of right or duty. The officials of common?law legal systems consider themselves required to decide thus and so in such and such circumstances out of respect for other courts in the system. One can, though, distinguish cases where a decision really is taken simply out of such respect from cases of following precedent. Where the highest court in a jurisdiction is not bound to follow its own precedents, it may nevertheless always follow them out of respect for its previous incarnations. The relation of lower courts to its decisions is clearly different.

Stare decisis most plausibly seen as an instance of a rule-following social practice in the sense of that notion made famous by Wittgenstein (Wittgenstein 1956; 1958). Such practices contain both room for flexibility in applying rules to particular cases, as well as some determination, independent of the beliefs of those whose practice it is, of what can count as following the rule.

iii) The justification of precedent. The question is often raised as to the justification for the practice of reasoning from precedent in the law. The need for justification seems to flow from the following observation.Stare decisis requires that courts conform their decisions to decisions reached by previous courts, and sometimes those previous decisions will have been unjust. Stare decisis, that is, sometimes requires courts to reach unjust decisions. Stare decisis thus characterized seems paradoxical — how can it be a morally justified requirement to do the morally wrong thing? This line of argument is question-begging.

There are many properly legal values that the practice of stare decisis arguably serves — certainty, reliance, equality, efficiency, fairness (in the sense of the maxim `Treat like cases alike’) are all regularly mentioned. More specific reasons are also adduced, such as the avoidance of delayed justice, the greater decision-making proficiency of superior courts, the desirability of uniform decision-making in the law. Appeals are also made to tradition and respect for the past as values in themselves. Some of these suggestions make more sense than others, but it is clear that a plausible case can be presented.

If so, then we can meaningfully ask at the level of institutional design within background political morality, Should we institute, or maintain, a system of stare decisis as an essential mode of judicial reasoning? Alexander identifies as one model of precedent what he calls `the natural model’ (Alexander 1989, 5).  Under this model the court in deciding a case gives prior judicial decisions the weight that those decisions carry independently of any formal requirement that precedent be followed. Alexander rightly goes on to point out that it is misleading to label the method of the natural model of precedent as precedent following at all (Alexander 1989, 9). It is particularistic decision-making, not reasoning from precedent. He suggests that the best model of precedent overall seems to be a two-level one. At the level of how reasoning from precedent plays itself out in the actual functioning of a common law legal system, the rule model is the best model. But still we can ask at the level of institutional design within background political morality, Should we institute, or maintain, a system of stare decisis as an essential mode of judicial reasoning? Here, Alexander argues, the natural model is correct. At this level, we should look at the particular system involved, and make sure that it can be justified for reasons of political morality (Alexander 1989, 48–56). The values that are arguably fostered by a system of stare decisis come in at the level of justifying having such a system at all. The system itself, however, insulates decision-making within the system from those values directly influencing the individual case, certainly at every level below that of the supreme tribunal of the system.  The consequence, though, of Alexander’s (surely very plausible) view is that it is misleading to say that stare decisis requires courts to reach `immoral’ or `unjust’ decisions. If the impugned decisions are reached by following the rules of a system itself determined to be overall justified, then the question of the immorality or otherwise of decisions within the system does not arise. To think otherwise is to force a system of stare decisis into the mould of a system of particularistic decision-making.
References

Alexander, L. 1989. `Constrained by Precedent’. Southern California Law Review 63:1–64.

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Brewer, S. 1996. `Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy’. Harvard Law Review 109:923–1028.

Bronaugh, R. 1987. `Persuasive Precedent’. In Precedent in Law, ed. L. Goldstein, 217–47. Oxford: Clarendon Press.

Glenn, H. P. 1987. Persuasive Autonomy. McGill Law Journal 32:261–98.

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