The (Occasional) Absurdity of Stare Decisis in English Law


Royal Courts of Justice, The Strand

Stare decisis is a fundamental principle of common law legal systems. Without this doctrine, there would be little to formally distinguish those systems based on English law and those more firmly rooted in Roman civil law in their modern post-Enlightenment codification form. The idea is simple yet the impact is profound: an institution, usually a High Court or above, makes a decision, and that decision must remain untouched until changed, modified or done away with altogether by another institution e.g. a court higher up the food chain, or Parliament – stare decisis et non quieta movere.  

With this comes certainty and flexibility, the two requisites for the efficient ordering of any legal system. Rules must be clear enough so as to be ascertainable while at the same time flexible enough to account for changes in the way actors within a society interact at any given point in time. Typically the changing tides are viewed as being firmly within the remit of Parliamentary politics and democratic decision making therein. This is a simplistic view which ignores the crucial role of the independent legal profession (lawyers, judges etc.) and the legal system in which they must operate, a system inextricably tied to the very courts that must interpret and apply the broad brushstrokes of what Parliamentarians have  hashed out – probably as a compromise and which they will never have to use to settle disputes themselves. This is the heart of the common law system: binding precedents that have been created through the direct (read ‘adversarial’) participation of members of the public as opposed to a typically more passive participative form of marking ballots and hoping for the best.

That the decisions or precedents become binding (literally as well as figuratively) is illustrative of the system seeking certainty. The issue of legal certainty is particularly challenging in the context of judicial decisions as the inductive reasoning and principles to be extrapolated from them are not always as straightforward as it is to say that under s.1(2)(c) of the Certainty Act 2014 such and such is the law/rule/norm. Nor is it necessarily clear what a Parliament meant by a provision, and even less so how that rule is to be applied in practice. There will always be room for interpretation and subsequently advancing such interpretations with a degree of advocacy. Still, when a decision to enact a Bill is made, this is intended to be the final word from Parliament, at least for the time being. Likewise with decisions of higher courts. Were there no element of rigidity in the system, these Acts, rules, and decisions would be meaningless.

It is also, however, challenging with regard to judicial attitudes. It is easier, and far less risky, to stick to established law than it is to radically or even marginally overhaul it through the court system. Judges are rarely mavericks and are probably among the most inclined to stick to the rules, especially in the lower courts where they pretty much have no other option but to administer settled law. At the higher end of the spectrum, there is significantly greater scope for interpretation of law. Indeed this is the raison d’etre of the Court of Appeal and the Supreme Court – they only deal with legal matters as opposed to matters of fact and law. This hierarchy helps keeps things clear and certain as well as maintain an appropriate degree of deference for the democratic process. Inevitably there remain problems, however. That the system is, to an extent, problematic isn’t just from the reticent attitudes of judges personally, rather it is doctrinally problematic in a systemic way. A High Court judge has no authority to overrule a Court of Appeal or Supreme Court decision and the case must make its way up through the senior courts. What I’m trying to point out is that this climb is only possible when the matter at hand is particularly important and those to whom it matters are capable and willing to keep fighting it. This can make for slow changes in an already slow moving industry, and it can also make change costly: a significant risk when there is never a guarantee of change.

The other important caveat is that many of these rules overlap, are founded upon existing principles (either by analogy or straight up extension) and essentially depend on one another for their continuing existence. Changing one may have the undesirable effect of rendering another logically inconsistent. The study and practice of law is very much a science in this regard: principles are clear and deducible until a new way of doing something is discovered, invented or is simply developed over time. It is a cohesive system designed by man so individual rules and policies cannot simply be looked at isolation. Making changes to the law is thus no easy feat, particularly for courts lacking in seniority/expertise, although it can just be a question of Parliament dictating that a change must be so and for the legal system to simply have to accept and work with it, sometimes for the better.

Where the matter has a long pedigree or is controversial, leaving it to Parliament is probably (and widely accepted as) the best way to go about changing it, at least in terms of more traditional democratic ideals, especially in the way these ideals are understood by the public. After all, the public voted for their fellow citizens to become MPs so surely those in the Commons know what they’re doing, took advice from the relevant commission and aren’t purely peddling an agenda?

Sometimes though it is for good reason that rules not be subject to abrupt, heavy-handed changes through legislation and are better left standing as common law precedents. This way they can instead be subjected to the adversarial tests in the courts through the tides of litigation, developing incrementally, organically and under less direct political-media campaign influence. They can then be subject to practical experimentation within society, in the real-world by those entrusted by the system to administer it, the profession dedicated to applying law and learned in it, rather than being constructs of a relatively more politicized leaning. This coupled with the expectation of Parliament as a law-making machine whose whole existence is predicated on it cranking out regulation leads to a potential imbalance in the state of affairs. The House of Commons should be (and is), in keeping with democratic principles, the supreme law-making body. But unbridled power in career politicians must have a counter-balance to keep it in check. It should be fairly obvious that just because 51% of people think something should be so does not necessarily make it just, or even workable. Luckily the Upper House of Parliament is unelected and so can help provide expert scrutiny during the legislative stages, although, since they are unelected they cannot veto much. The same more or less applies to the judiciary and legal profession, particularly their work in the higher courts.

So the matter may be left to Parliament in the hopes that there is time and priority for it on the respective parties’ agenda. Yet this is unlikely when the matter in question concerns legal technicalities rather than popular political issues. Or at least not until they [the legal technicalities] cross that frontier in any practical sense i.e. it becomes a live political issue that may affect a party’s credibility or in some way encroach on their perceived democratic law-making authority/role. Politicians are interested in marketing their party’s agenda, not in settling arguments between members of the public using the rules they, their predecessors or the legal profession have elaborated. Sometimes then it is necessary for the courts to at least try a different approach if anything just to get a reaction from Parliament (‘the people’), or to kick the donkey as it were. Again though, the only court likely to have this kind of political sway is the Supreme Court, or perhaps indirectly, and depending on who’s sitting, the Court of Appeal (see e.g. some of the history behind the judgements of Denning MR in the 20th century, a man very much ahead of his time and to whom the modern law owes a great deal).

This brings me to the case that incited this discussion, Pinnel’s Case [1602]. Pinnel’s case is interesting because it draws upon a number of the issues discussed above. The irony of its effect on English contract law is in certain ways remarkable, just as it is remarkable that someone sitting law exams in 2014 must be aware of a still-standing 17th century decision – stare decisis et non quieta movere indeed.

NB I may flesh this out in due course (i.e. next time I procrastinate for a contracts paper)


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