Precedent, Rule of

by Stefan Vogenauer

1. Rule of precedent and judge-made law

The rule of precedent (or ‘doctrine of precedent’) in English law concerns the binding force of court decisions for future cases. A precedent is a judge-made rule. The doctrine of precedent is therefore closely connected with the theory of judge-made law, and it is frequently discussed in the context of the judicial power to create law. However, the power of lawmaking and the binding nature of legal decisions are not intrinsically tied to each other as can be seen in continental legal systems. There, even those legal writers who support a creative function of the judiciary would normally deny the binding force of judicial decisions.

2. The rule of precedent in English law

In England, judge-made law has always been of great importance. Beginning in the Middle Ages, and particularly from the 16th century onwards, the courts referred to previous decisions when deciding new cases. While the courts felt bound to follow an established line of decisions, they did not acknowledge the binding force of individual judgments. It was only in the course of the 19th century that the rather flexible maxim stare decisis, quieta non movere (‘stand by what you have decided, and do not disturb what has been settled’) gave way to the rigid binding force of individual precedents.

Two types of binding force can be distinguished. First, during the second quarter of the 19th century it was established that every court was bound to the decisions of a higher court. This is today called ‘vertical precedent’. Secondly, from about 1860 onwards it was increasingly acknowledged that courts were bound by their own precedents or by decisions of courts at a similar level in the court hierarchy although it was not until the turn of the century that adherence to ‘horizontal precedent’ was fully recognized (London Street Tramways Co Ltd v London County Council [1898] AC 375 (HL)). The gradual hardening of the rule of precedent was the result of a combination of factors which included changes in constitutional law, in the prevailing strands of legal theory and in the institutional and organizational framework of the English legal system.

From the perspective of constitutional law, the new emphasis on the doctrine of the separation of powers, on democratic principles and on the rule of law rendered the judicial power to make law questionable. This concern not only militated against the creation of judge-made law on issues where previously there had been no law at all, but also against the creative development or the non-application of existing judge-made rules. Furthermore, the strict adherence to precedent ensured a maximum of legal certainty and thus promoted the core value of 19th and early 20th century English legal theory. Finally, the professionalization of law reporting and the establishment of a rational and clear court hierarchy created for the first time the necessary conditions for establishing a functioning doctrine of precedent.

The move towards strict binding force made it necessary to reflect more seriously on the methodological principles for dealing with precedents. It became particularly important to define which part of the previous decision had binding precedential value (ratio decidendi) and which parts were mere obiter dicta and thus non-binding. Distinctions were drawn between precedents with ‘binding authority’ and those which had merely ‘persuasive authority’. The second group included decisions of lower and foreign courts. The degree of persuasiveness depended on different factors, such as the personal authority of the judge who had given the previous decision or the proximity of the foreign legal system to English law. Furthermore, the courts developed rules and principles for the application and the interpretation of previous decisions. One of the particularly important methodological devices was the technique of ‘distinguishing’ a judge-made rule; this enabled the courts to avoid applying the rule if the facts of the new case were sufficiently different.

These methodological devices continue to be used. However, the rigid doctrine of precedent was relaxed in the second half of the 20th century. The turning point was the House of Lords’ announcement that it would continue to treat its previous decisions as ‘normally binding’ but would be prepared to depart from them ‘when it appears to be right to do so’ (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234). Since then the Law Lords have exercised their new freedom with caution, but departures from precedent have become more common since the 1980s. During the same decade the various divisions of the High Court also abandoned the notion of being horizontally bound to the decisions of the court’s other divisions. By contrast, the binding force of higher courts’ decisions has been retained.

3. The binding force of precedent in continental laws

From the Middle Ages onwards, continental lawyers discussing the binding nature of judicial decisions had to face the tension between two seemingly contradictory fragments of the Corpus Juris Civilis. On the one hand, C. 7,45,13 provided that adjudication should be guided by statutory law rather than by previous examples (non exemplis, sed legibus iudicandum est). On the other hand, D. 1,3,38 stated ‘that in cases of ambiguity arising from statutory law, statutory force ought to be ascribed to custom or to the authority of an unbroken line of similar decisions’ (transl. DN McCormick). The prevailing opinion amongst the writers of the ius commune suggested resolving the tension by acknowledging the binding force of a constant line of judicial decisions which had hardened into customary law (usus fori, Gerichtsgebrauch) whilst at the same time denying that individual judicial decisions possessed binding force. As a matter of fact, however, courts frequently followed individual decisions, and judge-made law was of great importance in legal practice. From the 16th century onwards, there was even a statutory requirement according to which some of the decisions of the German Reichskammergericht (Imperial Chamber Court) were binding beyond the case decided.

In the 18th and 19th centuries some of the territorial legislatures in Germany (Bavaria and Hanover) aimed at making the decisions of the courts more uniform and predictable and introduced statutes providing for at least a limited degree of binding effect of precedent. However, as a general rule, enlightened absolutist rulers were as hostile to the idea of precedent as were the French revolutionaries and the early German constitutionalist writers: since the law-making power was to be the exclusive preserve of the legislator (be it a monarch or an assembly), judicial decisions ought not to be binding on subsequent cases. The Allgemeines Landrecht für die Preußischen Staaten (ALR) of 1794 explicitly stated that ‘previous decisions of the courts will be ignored in future decision-making’ (§ 6 of the Introduction). Similar provisions can still be found in the Code civil (Art 5) and in the Austrian Allgemeines Bürgerliches Gesetzbuch (ABGB) (§ 12). Nineteenth-century legal writers were similarly sceptical of vesting individual judicial decisions with binding force. Even the doctrine of the customary force of settled lines of decisions came under attack.

This attitude remained more or less in place during the 20th century. Modern methodological accounts, of course, refer to the enormous significance of judge-made law in legal practice. It is obvious that the courts usually follow precedents. Whilst such a ‘de facto binding force’ is not regarded as problematic from the perspective of pure theory, any ‘bindingness de jure’ is still widely rejected. There is an intermediate view that suggests ascribing normative force to judge-made law to the extent that a court that wishes to deviate from a precedent is subject to an increased ‘burden of argumentation’, but this opinion has failed to convince the mainstream of modern legal thinking. The binding force of precedent is only acknowledged where there is an express statutory provision to this effect, as in § 31 of the German Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz), according to which the decisions of the Court are binding on all constitutional organs and authorities; certain decisions are even endowed with statutory force.

Given that continental legal methodology has always rejected the binding force of precedent, it has never felt the need to develop as sophisticated a methodology for the application and interpretation of precedent as has been the case in England. There are therefore no settled methodological rules on the question of which (parts of) decisions are accorded precedential value and to what extent this ought to be the case. Furthermore, there are no guidelines for the application and interpretation of judge-made rules. However, such principles are needed even if a court follows a precedent without being legally bound to do so. Thus the ‘relative absence of skills in case analysis’ constitutes, as the American comparatist Mary Ann Glendon has rightly criticized, ‘the Achilles heel of civil law methods’.

4. The binding force of precedent in European private law

In Union law, including Union private law, the de facto bindingness of precedent is extremely strong. The General Court of the European Union (GC) usually follows the decisions of the European Court of Justice (ECJ). The ECJ itself also refers in almost every decision to previous cases; similarly, the Advocates General frequently draw on these precedents in their opinions. Reference to case law is inevitable whenever the ECJ acts on previous decisions which created judge-made law. In such cases the ECJ interprets the respective precedent and perhaps the settled case law emanating from it rather than the written law of the Union.

Thus, at first sight, the practice of precedent in the Union courts can hardly be distinguished from that of English law. However, Union law does not attribute normative force (in the sense of legal bindingness) to precedent. The GC is not under a legal obligation to follow the case law of the ECJ (no vertical bindingness) nor are any of the Union courts bound by their previous decisions (no horizontal bindingness). If the ECJ departs from its previous case law this is usually done to account for changed circumstances. Such deviations are sometimes explicitly acknowledged, but in most cases the judgments of the court do not make it clear whether and to what extent its case law is being modified. The lack of a specific case law methodology is yet another factor that places the Union courts rather more in the continental than in the English judicial tradition with regard to the rule of precedent. Similar observations can be made with regard to the case law practice of the European Court of Human Rights (ECtHR).

National courts are not bound by ECJ decisions. Preliminary rulings under the procedure set out in Art 267 TFEU/234 EC are only binding on the referring court. If the same question is relevant for a later decision of a Member State court that court may again refer the question to the ECJ, although the ECJ is reluctant to accept such references where the question is at least very similar, or even identical. Such references are usually disposed of by a similarly worded decision of the Court. The ECJ certainly works on the assumption that the national courts take guidance from its case law in applying and interpreting EU law.

According to the traditional view, the courts of a particular jurisdiction are not bound by the decisions of courts of other legal systems. However, it is generally accepted that for the interpretation of international uniform law the courts of a given contracting state must take into account the case law of the courts of other contracting states, without being bound by the latter. A similar rule applies for the interpretation of EU law although it is of lesser practical importance because the Union has a common Supreme Court (the ECJ). There are more and more calls in favour of attributing at least limited binding force to the decisions of other contracting states or Member States in the interpretation of international uniform law and Union law. The model usually envisaged is that of the persuasive authority that courts in the common law tradition accord to their respective decisions, particularly as between England and the other Commonwealth jurisdictions. Recently, it has even been suggested that in some areas of international uniform and Union law precedents from other jurisdictions should be recognized as formally binding.

Literature

See the literature under the entry judge-made law. See also: Laurence Goldstein (ed), Precedent in Law (1987); Rupert Cross and James W Harris, Precedent in English Law (4th edn, 1991); Thomas Probst, Die Änderung der Rechtsprechung: Eine rechtsvergleichende, methodologische Untersuchung zum Phänomen der höchstrichterlichen Rechtsprechungsänderung in der Schweiz (civil law) und den Vereinigten Staaten (common law) (1993); Lionel Neville Brown and Tom Kennedy, The Court of Justice of the European Communities (5th edn, 2000); William Hamilton Bryson and Serge Dauchy (eds), Ratio decidendi: Guiding Principles of Judicial Decisions, vol 1: Case Law (2006); Ilka Klöckner, Grenzüberschreitende Bindung an zivilgerichtliche Präjudizien: Möglichkeiten und Grenzen im Europäischen Rechtsraum und bei staatsvertraglich angelegter Rechtsvereinheitlichung (2006).