The fundamental problem with this reasoning in the case of precedent is that it suffers from a kind of circularity. It is true that legal systems that follow precedents give rise to hopes that previous decisions will be followed in the future. However, it is important to remember that only legitimate expectations should be considered when making decisions, not just the expectations that someone is having. The mere fact that a decision has been taken in the past does not in itself give reason to believe that it will be followed in the future and certainly does not give rise to any claim that it will be followed. The fact that a company orders stationery from a supplier at the beginning of the year may raise hope, and perhaps even expectation, that it will do so again later in the year, but the supplier has no “legitimate” expectation that it will do so, and the company does not set a precedent for itself. If, on the other hand, there is an institutional practice of following previous decisions, the confidence of those subject to future decisions may give rise to legitimate expectations, but the institution is always free to announce that it will no longer consider previous decisions binding and will instead decide on the merits of each case. Similarly, it is common in some institutional bodies for decisions of the past to be followed so that a decision is taken provided that it “does not set a precedent” for the future. Stare decisis is the court`s policy of respecting precedents; The term is only an abbreviation for stare decisis and non quieta movere – “to remain passive and stick to decisions and not disturb what is regulated”. Consider the word “decisis.” The word literally and legally means the decision. According to the doctrine of stare decisis, a case is important only for what it decides – for the “what”, not for the “why” and not for the “how”. As far as precedents are concerned, stare decisis is relevant only for the decision, for the detailed legal consequence after a detailed presentation of the facts. [26] Where different members of a multi-judge tribunal express different opinions, the reasoning may be different; Only the ratio decidendi of the majority becomes a binding precedent.
For example, if a 12-member tribunal divides 5-2-3-2 into four different opinions on several different topics, each reasoning may require seven votes on each particular issue, and majorities of seven judges may vary from subject to subject. All can be cited as persuasive (although, of course, opinions that agree on the majority result are more persuasive than dissenting opinions). In exceptional circumstances, a superior court may overturn or overturn mandatory precedents, but will often attempt to distinguish the precedent before it is repealed, thereby limiting the scope of the precedent. It should be noted that modern common law advocates a particularly strong version of stare decisis, which requires subsequent courts to follow previous decisions, even if those cases were wrongly decided under pre-existing law. It is often assumed by ordinary jurists that a doctrine of stare decisis necessarily requires that subsequent courts be bound by such erroneous decisions. This follows from the following school of thought. If subsequent courts were not obliged to follow erroneous decisions, they would only be “bound” by previous and correct judgments. But an earlier correct judgment simply concludes that the law was already supported when it was enacted. Thus, ordering the courts to follow up cases that were not tainted by irregularities would simply mean ordering them to do what they are legally required to do anyway (i.e., enforce the law), which would render the doctrine of precedent superfluous. The flaw in this reasoning lies in the assumption that, in each case, there must be only one legally correct result, while other results are wrong.
This ignores the possibility of cases where the substance of the dispute is legally uncertain, so there is more than one possible outcome that would not be bad. The assertion that a case is “legally indefinite” includes a number of situations, such as the merits of opposing arguments, which are legally the same, or where conflicting considerations cannot be rationally compared to each other. In such cases, the decision amends the law without making mistakes. The common law could then have qualified its doctrine of stare decisis by concluding that subsequent courts were not bound by earlier decisions that had been wrongly decided. [2] Instead, it has developed a different practice – that of “layering,” in which some courts have been given limited power to revoke previous decisions from their binding status because they were poorly decided. Thus, the common law version of the case law does not necessarily flow from the fact that precedents have practical authority. Nevertheless, the idea of having to follow even bad decisions is a common feature of many institutions and will be the focus of this article. Precedents can only be useful if they show that the case was decided according to a certain principle and should not be binding if they contradict such a principle.
If a precedent must be followed because it is a precedent, even if it is decided against an established rule of law, there can be no possible correction of abuses, because the fact of its existence places it above the law. It is always prudent to rely on principles. Once a case has been decided, the same plaintiff cannot sue the same defendant again for a claim arising from the same facts. The law requires plaintiffs to ask all questions on the table in a single case and not divide the case. For example, in a car accident, the plaintiff cannot sue first for property damage and then for assault in a separate case. This is called res judicata or claim preclusion (“res judicata” is the traditional name that dates back centuries; the name was changed to “claim preclusion” in the United States at the end of the 20th century). The exclusion of claims applies regardless of whether the plaintiff wins or loses the previous case, even if the last case raises a different legal theory, even the second claim is unknown at the time of the first case. The exceptions are extremely limited, for example: if the two actions for damages must necessarily be brought in different courts (for example, one action may be brought exclusively at the federal level and the other exclusively at the state level). This 1990 Supreme Court case began when two Native American men who worked in Oregon were fired for using peyote after failing a drug test. Although they used it in a religious ceremony, peyote was still an illegal drug. The men applied for unemployment benefits, but the state of Oregon rejected their claim, citing the drug exemption from the state`s obligation to provide unemployment benefits.
The case reached the Supreme Court and the justices voted for the state. In his opinion, Justice Antonin Scalia argued that allowing exemptions from laws on religious grounds “would open up the prospect of constitutional exemptions from civic duties of almost every conceivable type,” such as paying taxes or meeting vaccination requirements. In fact, all courts are required to follow the decisions of the Supreme Court as the highest court in the land. Therefore, decisions taken by the highest court become binding precedents or a binding stare decisis for the lower courts of the system. If the Supreme Court overturns a precedent set by lower courts in the legal hierarchy, the new decision becomes stare decisis in similar hearings. If a Kansas court case that has followed a certain precedent for decades is brought before the U.S. Supreme Court and then overturned by that court, the Supreme Court`s repeal replaces the precedent and Kansas courts would have to abide by the new rule as a precedent. This point highlights an important aspect of the study of precedents. Lawyers deal primarily with two issues: (1) how to determine what constitutes authoritative precedent, p. e.g., How to characterize the decision in the case (Drink? Incidentals? Article?), or how to deal with cases where there is no single majority in favour of the outcome, or how to deal with cases that provide two alternative bases for decision; and (2) when a court is willing to overturn its own previous decisions. The most interesting philosophical questions, however, concern the operation of precedents when, as is often the case, there is no doubt as to the authoritative jurisprudence, and the subsequent court is not free (or reluctant) to overturn the earlier decision.
Arguments drawn from precedents and analogies are characteristic of legal argumentation. Legal reasoning differs in many ways from the type of reasoning that individuals use in their daily lives. Arguments are often used that individuals do not use or that individuals use in different ways. The precedents are a good example. In individual reasoning, we generally don`t take the fact that we`ve chosen a path in the past as an assumption that we should make the same choice in the future.
