Disadvantages of stare decisis

READ MORE: Precedent. From Wikipedia, the free encyclopedia. Criticism of precedent. https://en.wikipedia.org/wiki/Precedent#Criticism_of_precedent.

Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (Article 8 of the New Civil Code)

The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. (G.R. No. 147097. June 5, 2009)

Time and again, the Court has held that it is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. Stare decisis simply means that for the sake of certainty, a conclusion reached in one case should be applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisisis a bar to any attempt to relitigate the same issue. (G.R. No. 197192. June 4, 2014)

Stare decisis et non quieta movere. This principle of adherence to precedents has not lost its luster and continues to guide the bench in keeping with the need to maintain stability in the law. (G.R. No. 228628. July 25, 2017)

The biggest advantage of stare decisis is equal protection of the law. Those who are in the same or similar situations must be treated the same or similar way by the courts. It would be unfair if the same or similar factual backgrounds are resolved in different ways in the interpretation or application of laws.

However, in a 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:(1) cases where the foreign jurisdiction's law is the subject of the case, or (2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.

The disadvantages of stare decisis include its rigidity, the complexity of learning law, the differences between some cases may be very small and appear illogical, and the slow growth or incremental changes to the law that are in need of major overhaul.An argument often used against the system is that it is undemocratic as it allows judges, which may or may not be elected, to make law.

READ MORE: Precedent. From Wikipedia, the free encyclopedia. Criticism of precedent. https://en.wikipedia.org/wiki/Precedent#Criticism_of_precedent.

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedent until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedent.

A counter-argument (in favor of the advantages of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge supported anyway, but ignoring it in order to change precedent with which the judge disagreed.

There is much discussion about the virtue of using stare decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes decisions "predictable". For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution .

READ MORE: Precedent. From Wikipedia, the free encyclopedia. Criticism of precedent. https://en.wikipedia.org/wiki/Precedent#Criticism_of_precedent.