This principle is called stare decisis, Latin, which literally translated means, “stand by things decided.” Stare decisis has come to us as a most sacred rule of law. A judge is to apply the law as it is presented to him through the previous decisions of the court; it is not the judge‘s function to make or remake the law . . . .
~WALTER BAGEOT, THE ENGLISH CONSTITUTION (n.p. 1867), quoted in Peter Landry, The Common Law: Tradition & Stare Decisis (visited 21 Nov. 2005)
This idea [stare decisis] . . . is picked up in the [common] law, as it exists today. When a court decides a case it does so on the merits of the case before it. The court’s decision is meant to only effect the rights of the parties, the litigants, before it. The court, however, is obliged to apply settled principles of law. The decision of any respected court amounts to a recap of the law needed to resolve the case before it. The law as it is used in the particular case has a universal applicability to all future cases embracing similar facts, and involving the same or analogous principles. These decisions, many being years and years old, thus became statements of law, to be applied by all courts when measuring the private and public rights of citizens. It is this stream of cases, within the arc of the great pendulum of time, which changes the banks of the law: the common law, thus, as it turns out, is a living, creeping creature. Do not, however, be mistaken—there is a conscious effort by those involved (lawyers and judges) to keep the law pure: not to change it, but to apply it. ~WALTER BAGEOT, THE ENGLISH CONSTITUTION (n.p. 1867), quoted in Peter Landry, The Common Law: Tradition & Stare Decisis (visited 21 Nov. 2005).
Appellate court opinions are the authoritative product from which the common lawyer finds principles applicable to an issue in a new conflict. In summary, the process of the common law begins with an assay of one’s desired application of a first principle against the consistency of authoritative case precedent, followed by reasoning down from this first principle as a universal premise, to the facts of the case under consideration as a minor premise, thereby rendering a legal conclusion.
The calculus of common-law precedents is analogous to the making of a pearl. The common law has been, and continues to be, built up as is a pearl in an oyster: slowly and always in response to some personal aggravation. Court adjudication after court adjudication building up the common law gem “infinitesimal layer after infinitesimal layer,” resulting in a finely shaped pearl called a rule of law:
For hundreds of years the common-law courts have tested, observed, adjusted, and re-observed; and thus, over time, the common-law tradition shakes out the truth.
[The common law emerges] through long continued and arduous labors, grown venerable with years, and interwoven as it has become with the interests, the habits, and the opinions of the people. [Without the common law,] in each recurring case [a court would] have to enter upon its examination and decision as if all were new, without any aid from the experience of the past, or the benefit of any established principle or settled law. Each case with its decision being thus limited as law to itself alone, would in turn pass away and be forgotten, leaving behind it no record of principle established, or light to guide, or rule to govern the future.~Peter Landry, The Common Law: Tradition & Stare Decisis (visited 21 Nov. 2005)
Stare Decisis is a distinct characteristic of the common law tradition and thrives only in an open society. Thus, stare decisis does not exist in civil law jurisdictions.
Copyright © 2008 by Brent Winters