Stare decisis, or the principle of binding precedent, means that a decision made by a court is binding on that court itself in future cases and on all inferior courts in the same legal jurisdiction. The rationale for this principle is the idea that judges should treat like cases alike. Moreover, stare decisis not only serves as the foundation of the Anglo-American “common law” system; it is also said that stare decisis promotes the rule of law, since this principle is designed to limit the discretion of judges and thus keep the legal system predictable and stable over time.
But as a matter of logic, the principle of binding precedent neither enhances the rule of law nor limits the discretion of judges because, at the end of the day, it is the judges themselves who decide when two cases are sufficiently alike or unalike. Moreover, stare decisis is based on a tautology: one practical, the other logical. Let’s consider the practical problems with the principle of stare decisis first. It is all well and good to say that judges should treat like cases alike, but who decides when two different cases, let’s call them case A and case B, are sufficiently alike or unalike? Why, it is the judges themselves who decide this! Thus, from a purely practical perspective, the impotence of the principle of precedent should become apparent to us at once. On the one hand, the main purpose of stare decisis is to limit the discretion of judges, but at the same time, it is these same judges—i.e. the very same officials whose discretion we wish to limit—who decide which precedents are binding!
To make matters worse, the notion of “binding precedent” is itself something of an oxymoron, a logical contradiction. Even when everyone agrees that case A and case B are sufficiently alike for purposes of stare decisis—so that case A controls the outcome of case B—this happy state of affairs now raises a new and more troubling question: on what authority is stare decisis itself based on? Why is this new question so troubling? Because the obvious answer to this question undermines the very moral foundation of our legal system: it is the common-law judges themselves who have established the doctrine of stare decisis on normative grounds—the moral maxim of treating like cases alike—and since it is the judges themselves who have announced that precedents are binding, then by this same logic, these same judges also have the authority to disregard the doctrine that they themselves have created. Of course, one could reply that our argument has no practical import in the real world, since so few judges would ever openly disregard or undo the doctrine of stare decisis …
But what about the hard cases?
This post is based on our previous work: F. E. Guerra-Pujol, “Is stare decisis a sand castle?,” Arizona State Law Journal (Oct. 1, 2012).
In the end, you need to have judges who are trained to respect the concept of stare decisis. I understand, this just shifts the tautology one step backward in the chain, but how is justice any different from other self-sustaining systems like organized religions, etc. If you buy into the system, you buy into the rules! As Douglas Hofstadter wrote… https://books.google.com/books?id=o8jzWF7rD6oC&pg=PA49&lpg=PA49&dq=%22On+Viral+Sentences+and+Self-Replicating+Structures%22&source=bl&ots=jPBf8vGpet&sig=ox67gA6OLB86gd-Z66O-bJwC-9o&hl=en&ei=GyGES_HWPJPplAeurqzYAQ&sa=X&oi=book_result&ct=result#v=onepage&q=%22On%20Viral%20Sentences%20and%20Self-Replicating%20Structures%22&f=false
Thanks for the pointer. Douglas Hofstadter is one of my favorite thinkers, so I will study this link closely.
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