stare decisis

Definition of stare decisis

Etymology

From the Latin stāre (“to stand”; “to stay”, “to remain”), present active infinitive form of stō (“I stand”; “I stay”, “I remain”) + d�"cīsīs = “let the decision stand”.

Pronunciation

• (US) enPR: ste(ə)'r�" di.sī'sis

Noun

stare decisis (uncountable)

1. (law) The principle of following judicial precedent.

Further reading

Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.

Principle

The principle of stare decisis can be divided into two components. The first is the rule that a decision made by a superior court is binding precedent (also known as mandatory authority) which an inferior court cannot change. The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one which courts can and do ignore occasionally.

Application - English legal system

The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Hong Kong, New Zealand, Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a decision by a superior court will be binding on inferior courts. This means that when judges try cases they must check to see if similar cases have been tried by a court previously. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it. The Supreme Court (previously the House of Lords) however does not have to obey its own precedents.

Only the statements of law are binding. This is known as the reason for the decision or ratio decidendi. All other reasons are "by the way" or obiter dictum. See Rondel v. Worsley [1969] 1 AC 191. A precedent does not bind a court if it finds there was a lack of care in the original “Per Incuriam”. For example, if a statutory provision or precedent had not been brought to the previous court's attention before its decision, the precedent would not be binding. Also, if a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly, precedents can be overruled by a subsequent decision by a superior court or by an Act of Parliament.

Practical application

Although inferior courts are bound in theory by superior court precedent, in practice judges may sometimes attempt to evade precedents by distinguishing them on spurious grounds. The appeal of a decision that does not obey precedent might not occur, however, as the expense of an appeal may prevent the losing party from doing so. Thus the inferior court decision may remain in effect even though it does not obey the superior court decision, as the only way a decision can enter the appeal process is by application of one of the parties bound by it.

Judicial resistance

Occasionally, the application of prior case law results in court decisions in which the judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent. That is, the issue being judged was already decided by a higher court. Note that inferior courts cannot evade binding precedent of superior courts, but a court can depart from its own prior decisions.

Structural considerations

In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last resort, and are required normally to defer to the precedents of intermediate state courts as well.

Courts may choose to obey precedents of international jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of the soundness of its reasoning will be called persuasive authority - indicating that its effect is limited to the persuasiveness of the reasons it provides.