Stare Decisis - A Universally Misunderstood Idea?

Abstract

In this article, I argue against the overstatement of the binding effects of precedent in common law and against the understatement of the relevance of precedent in civil law. I try to show that judges and courts in both kind of systems have to acknowledge relevant precedents and then provide persuasive reasons for following or not following them. Blindly following precedent, just as blind application of statutes, is acceptable only in the 'empire of mechanical jurisprudence'. Ignoring precedent in the name of judicial independence, on the other hand, is acceptable only in the empire of arbitrary jurisprudence. Legal systems subscribing to the rule of law can neither be mechanical nor arbitrary. They have to care about legitimacy of the judicial process. They have to explain themselves and they have to do so persuasively.

Keywords: case law, stare decisis, common law, legitimacy of courts, rule of law, precedent, Hart - Dworkin debate on 'hard cases'

JEL Classification: K00, K40, K41, N40, P26, P30