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Stare Decisis: A Universally Misunderstood Idea

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'Stare Decisis' or 'stay with what has been decided' has long been understood as a fundamental principle of common law. In the absence of statutory language, it is supposed to provide stability by binding courts to follow earlier case-law of courts at equal or higher levels. By contrast, the continental European or civil law courts have traditionally seen themselves as not bound by case-law at all. In this article, the author argues that both understandings are ultimately wrong. Nowadays, courts all over the world are constantly challenged to find a course between Scylla and Charybdis – between the Empire of Mechanical Jurisprudence on the one side and the Empire of Arbitrary Jurisprudence on the other. The courts in both systems have to ensure that their decisions are objectively correct and subjectively perceived as just and fair. This can mean for a common law court having to deviate from earlier case-law in the name of objective justice although it would seem to fall under stare decisis. And it can mean for a civil law court having to follow earlier case-law in the name of equality before the law although there would seem to be no such 'rule' per se. For both types of courts, persuasive argument requires acknowledgement and discussion of earlier cases and rational explanations for following or not following them. Reliance on a traditional and narrow interpretation of stare decisis or the absence thereof can quickly conflict with the need for persuasiveness and ultimately damage the legitimacy of the courts and the legal system as a whole.
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  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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