Beetween Stare Decisis and Constant Jurisprudence

Introduction

The Common law/Civil law dualism has always been pivotal for any scholar approaching the study of Comparative law. According to reliable statistics, about the 70% of the world finds itself under a legal system identified in Civil Law or Common Law (around 44% of the States are under Civil law, around 27% are under Common law), so anyone who wants to truly dive into the study of matter must almost inevitably deal with at least one of those systems.
The differences between them are of course several and significant, so that one might think that they should be referred as the “antipodes” of the legal system conception, with no chance of commixture from one to the other.
The intent of this paper is to analyze the legal system of two countries, England and Italy, which historically have a very strong tradition of Common and Civil law – being the latter the leading exponent and exporter of the first system, and the former a direct descendant of the Roman law tradition – to assess whether effectively those two systems are diametrically the opposite or instead they might be running together, but in parallel, towards a certain point of coincidence.
The fact that English system is not codified influences, indeed, the task that their Courts have to carry out: not only deciding the case at issue, but also creating and developing new law if necessary. Precedents so are all those decisions that are binding for future judges called to adjudicate similar cases, and that therefore become law themselves: the case-law.
This is a scenario that in Italy cannot be allowed, since the Courts have the specific duty to speak for the law as it is stated in the codes. So, in Italy judges just look at the law and decide the case at stake without being bound by previous decisions, which therefore are only persuasive (in particular the decisions of the Supreme Court of Cassazione).
The purpose of this paper is therefore to analyze the different role of judicial precedents in each jurisdiction, taking a closer look to their relation to the other legislative sources in those countries, in order to find out what kind of influence they might have in the law development process.

Mario Michelangelo Paolini

The role of the precedent in the English and Italian judicial system:

Between Stare Decisis and Constant Jurisprudence

SUMMARY: 1. Contextual background for the comparison – 2. England – 3. Italy – 4. Comparison – Conclusions – Bibliography

1. Contextual background for the comparison

As aforementioned, Common and Civil law may be referred as the “antipodes” of the legal system conception.
Since the very beginning of their development, their differences seemed to be so marked that nobody could even suggest the contrary. In fact, while the Civil law system stemmed from Roman law and is referred as “a system of rules prescribed in authoritative texts”, the Common law system is defined as “a body of immemorial customary law discovered by the courts”, and finds its origin in the 11th century in England, precisely after the Norman conquest of 1066.
Before this occurrence, in fact, each part of England had different local rules, an unpleasant situation which rendered very complex the relations between traders due to the halo of uncertainty surrounding the law which was to be applied.
Therefore, the Normans, under command of Henry II, wishing to establish a unified legal system that would become “common” throughout the country, sent out itinerant judges with the task of ensuring a standardized system of law all across the country, issuing uniform decisions based upon a set of common principles which begun to be crystalized in those decisions: these are the first examples of case-law, and that is the beginning of the Common law, a law common to all English people, in England and all over its colonies.
On the other hand, similar difficulties went arising in Continental Europe: around the 6th century, Roman law was the wide legal basis for everyone in the land, but due to its vastness it was impossible to reach uniformity of application; the law used to change depending on the people to whom it was to be applied, the phenomenon of personalità del diritto5 was wide spread.
Thus, despite the need of legal certainty was the same, the solution that Romans adopted pointed in the opposite direction: Justinian, Eastern Roman Emperor, commissioned an encyclopedic work, called Corpus Iuris Civilis, which gathered and harmonized all the roman law in one single, complete Code. All judicial decision had to be taken in accordance with the law in the code, which became the primary source of law. This was the beginning of the Civil law, and the first step of a process of codification that will continue after the French Revolution with the Code Napoléon, the source of inspiration of the modern codes.
Seen that, it is now clear how the main features of these two systems are strictly linked to their historical genesis.
The Civil law system, indeed, entirely relies on the legislative source of law. Its core principles are codified into a referable system which considers these codes as the primary source of law. Civil law proceeds, with a deductive method of reasoning, from abstraction (codes[1] contain general principles which apply to every case that could possibly be brought before the court) to factually specific scenarios, in which judges apply the principles stemmed from the code to the concrete dispute. Therefore, while codified law is the cornerstone of the system, judges are reduced to a subordinated role of applying the law already stated in the codes, just choosing time to time the rule that best fits the case at stake.
Common law, instead, is a system in which law is made by judges[2]: there are not written codes to rely on, therefore law is developed directly by the Courts and stated in decisions issued when judges come to adjudicate individual cases, so after the dispute arises. Thus, here we have an inductive method of reasoning, in which law arises from specific cases to become an abstract rule of general application, crystalized in the judicial precedents. In fact, these decisions will have precedential authority on future cases with similar features, binding judges who are to make future decision just as any other law does: decisions become law itself.
In this system, it is statutory law that assumes a secondary role, very often just reflecting the rules of law enunciated in judicial decisions (i.e., they are the statutory embodiment of rules developed through the judicial decision-making process).

2. England

As a consequence of what we have seen, the heritage of English history is now a system in which there is not a written constitution, and nonetheless there are unwritten constitutional principles to rely on[3], namely the principle of separation of powers, of supremacy of the Parliament and of the rule of law.
For what is our concern, it should be born in mind that supremacy of the Parliament means that the Parliament has the supreme legislative power, and thus supremacy must be given to the result of its work, the statutes.
Therefore, the first thing everyone usually recognizes as characterizing the English law system is often wrong: the primary legislative source is not case law, but, at least in theory, the written law. It indeed prevails in case of conflicts with case law, and therefore is binding to judges, who have to adjudicate the cases in compliance with it. In addiction, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions.
Despite this, traditionally case law has always played a large role in law-making. The core of the law has always been developed by the judges, relegating the statutes to just a specification of the rules stated in the decisions, only completing the case law.
Moreover, when a case must be adjudicated on the basis of a statute, the latter gets absorbed in the jurisprudential circuit and, from that moment on, the sentence that rely on the given statute will become a binding judgement which will be followed by lower Courts and that will be cited as a Precedent instead of the statute itself.
The result is, thus, a set of decisions that can be cited as “Precedents”, and defined as “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases”.
Hence, it follows that, according to the Stare decisis[4] principle, which governs the English system, whenever a judge comes to adjudicate cases with similar features, s/he must follow the precedent stated in the prior decisions, so that similar facts yield to similar results in order to guarantee an equal treatment for all.
There are actually two kinds of binding precedent: Vertical, which binds all the courts from the highest to the lowest (i.e. from the Supreme Court to the County Court in England[5]), and Horizontal, which binds the issuing court itself and the other on the same level[6].
Consequently, a lower court may not rule against the higher, even if it feels that the precedent is unjust; it may only express the hope that a higher court will reform the rule in question, issuing an only-persuasive dissenting opinion which might encourage the claimant to appeal the forced decision, in order to let the higher court overturn it, setting a new precedent of higher authority.
However, it must be stressed that not the whole decision is binding, but only the ratio decidendi, which is the abstract principle of law which has been applied to the facts at issue and which have led to the decision, becoming the legal rule deriving from it.
All the other incidental statements about the law which do not constitute part of the court’s ruling on the case at stake, are obiter dicta, so not binding rules but only persuasive justification of the judge’s legal reasoning[7].

These are the substantial assumptions, but obviously the Stare Decisis rule is not absolute. It will only apply if the facts of the current case are consistent with those of the decision from which is extracted the precedent. If they are fundamentally distinct, the judge will be entitled to hold that the precedent has no applicability in the instant case, according the distinguishing rule, and will issue a new decision which will become a new binding precedent[8].
Moreover, when the facts are exactly the same and there is no possibility for distinguishing, an higher court can overrule the principle established in an earlier decision by a lower court or another court on the same level, even itself, because appears to be clearly wrong (“when appears to do so” is the wording of the Supreme Court in the Practice Statement of 1966) or so outdated that is no longer applicable for modern times. The decision for the prior case will remain, but from that moment on it is replaced by the fresh issued precedent.
Eventually, a decision of a lower court can be reversed in appeal; here the case is still open and the decision has not become a precedent yet.
Summing up, English judgements create law. They, therefore, have an objective ambit of efficacy, their ruling being applicable to every dispute having the same object, but different subjects. It is fully consistent with the inductive method of reasoning typical of common law systems: proceeding from the specific case to develop a rule of general application.

3. Italy

The Italian system instead, following the Roman tradition and the French Codification experience, is entirely based upon the written legislative source. It has a written Constitution containing all the fundamental principles to comply with, several codes gathering general rules for each branch of law[9] and a set of detailed statutes specifying the abstract rules of the codes.
The role of the courts here is limited to just spot the right rule and apply it to the instant dispute, interpreting it if necessary.
Judges are bound by the law, not by the previous decisions of higher courts.
This is the result of a specific constitutional choice of maintaining the principle of separation of powers very rigid: the Judicial body must not interfere with the legislative power of the Parliament, whose members are directly elected by the people and which therefore is the only one which has the democratic legitimacy to create law[10].
The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament (art. 1 Italian Constitution).
And that is the reason why we will not find any reference to the jurisprudence among the Italian legislative sources[11], but only to the statutes.
Precedents, so, in Italy are only persuasive, because, as article 2909 of Italian Civil Code provides, judgements are only binding on (and therefore constitute law among) the parties, their successors or assignees.
Therefore, Italian decisions have a subjective ambit of efficacy, being applicable only to their recipients and to nobody else, even if a similar dispute arises. They will obviously be strongly persuasive, but the new case will be decided only referring to the law, and nothing prevents judges to reach a different solution.
This is completely coherent with the deductive method of reasoning typical of civil system: proceeding from setting a system of general and abstract rules to a specific application of them.

4. Comparison

However, the difference between these two countries is less marked than it appears.
It is true that in common law decisions are considered law according to the Stare Decisis principle, but it is as much true that in civil law systems, although decisions might have only persuasive force, the more cases are decided with consistent reasoning the more weight they acquire: this is the phenomenon of Constant Jurisprudence, a way to give “quasi legislative” effects to the Italian pronounces without violating the principle of separation of powers.
Indeed, the Stare Decisis principle is not followed in Italy because it violates the principle that only the Parliament should make law[12]; therefore, as aforementioned, Italian judgements only have effect between the parties and lower courts are not bound to precedents established by higher courts.
And yet, in practice, a decision of the Italian Supreme Court of Cassazione will be followed by lower courts to the same extent of the english ones, due to the particular Nomofilactic[13] function entrusted to the Supreme Court itself: in addiction of being the Court of last instance in civil and penal matters, it has indeed the task of ensuring the observance and uniform interpretation of the law, in order to guarantee equality of treatment to everybody[14] and the unity of the legal system on the whole national territory[15].
Thus, with its pronounces, the Court establishes what must be the current interpretation of a certain statute, and lower courts will follow it: they will decide the case at the stake applying the law as interpreted by the Cassazione, giving birth to a series of decisions consistent with the precedent of the Supreme Court. Therefore this constant jurisprudence will define what is called the “living
law”, the current evolution of the law, developed by the Supreme Judicial Authority taking into account the dynamic requirements of the modern society.
However, it must always be stressed that the theoretical difference between Stare Decisis and Constant Jurisprudence, although in practice may lead to same results, remains significant: regarding cases with similar features,39 English lower Courts can’t do anything but applying the binding precedent given by the Supreme Court, while Italian Courts can deliberately avoid it and decide the case for themselves.
They rarely do so because the Cassazione is the court of last instance and thus parties can appeal any kind of decision even slightly divergent from what is the interpretation of the law made by the Court itself with its precedents. And, unless the appealed judge adduces very strong reasonings in order to make the Court change its orientation, the lower decision will inevitably be quashed, and the case sent back to another lower judge, who this time, and only this time, is legally bound by the Court’s decision[16].
Therefore, although Supreme Court’s precedents are not binding, Italian lower Courts will follow them either way because they are strongly persuasive in their legal reasoning and because they know in advance that different decisions will be quashed if they are not supported by reasonings convincing enough to change Court’s mind.
On the other hand, in England lower courts are bound to the Supreme Court precedent and cannot overturn it even if they disagree; they have to apply it, with the only chance to express their disagreement in a dissenting opinion which will invite the party to appeal the decision and which will hopefully persuade the Supreme Court to overrule their judgement.
Thus, while theory distinguishes them, in practice both systems aim to assure the equality of treatment with a system of precedents which are binding by “reason of authority” according to the English Stare Decisis doctrine, and by “authority of reason” according to the Italian Constant Jurisprudence doctrine.

Conclusions

The result of this – although partial – analysis, is the evidence of how the distinctions between the two systems have blurred, as a consequence of a trend of change registered from both sides, the one taking inspiration from the other, towards a common point of coincidence, a commixture more fitting the modern globalization reality.
Common law countries are adopting some of the characteristics of the Civil law system, while Civil law countries are incorporating some features of the Common law tradition.
Differences between legal systems are not anymore seen as obstacles but as inspiring models to aim if anyone wants to achieve a decent level of integration that a modern, interconnected world as ours requires.
As we have seen above, in Italy the Constant Jurisprudence doctrine combined with the Nomofilactic function of the Supreme Court consent to reach almost the same results of the English Stare Decisis principle, aiming to satisfy the needs of equality of treatment and predictability of the decisions without giving up the characteristic of legal certainty typical of a “code-centric” legal system, but being at the same time flexible and capable to easily adapt the general written rules to the varying and unforeseen conditions of society without turning to the very slow parliamentary law-making process[17].
Besides, also England, on the other side, has been conditioned by Civil law, especially by the need of a written law more democratic and easily cognizable by people, with an ordinated and referable consulting system in place of the immense and confusing precedent’s yearbooks in which sentences were gathered.
Consequently, the influence of the Parliament on the development of law has increased immeasurably in recent years, with a “legislative hyperactivity” that brought to a process of “statutorification” of the common law principles developed throughout the years into detailed statutes of general application, while the influence of judges has correspondingly decreased, limited to administrate the justice – at most interpreting the statutes if they let so – and leaving the law- making task to the legislative body, more in accordance with the principle of separation of powers and of supremacy of the Parliament.
Therefore, the theoretical distinction between Stare Decisis and Constant Jurisprudence collapses in practice, giving as result two systems that, from opposite starting points, slowly converge – each one taking advantage of some positive characteristics of the other – realizing two “contaminated” systems that are better aware of the needs, the wants and the usages of the dynamic and globalized modern society.

Bibliography

Articles:
– Apple James G., A Primer on the Civil-Law System, and Deyling Robert P. , Chief, Interjudicial Affairs Office Federal Judicial Center, Judicial Fellow, Administrative Office of the U.S. Courts, 1994–1995
– Avery, The English Legal System
– Carlson Laura, American Business Law For Civil Law Lawyers
– Reitz John C., HOW TO DO COMPARATIVE LAW, American Journal of Comparative Law Fall, 1998, Symposium: “New Directions in Comparative Law”, Comparative Law in the United States Today: Distinctiveness, Quality, and Tradition , Lloyd Duhaime. “Common Law Legal Definition”. duhaime.org
– Professor Richards Edward, The Importance of Precedent, LSU Law Center

Books:
– Black’s Law Dictionary (5th ed. 1979)
– Elliott, C. and Quinn, F. (2011) English Legal System, London: Longman
– Griffith, R. and Tengnah, C., Law and Professional Issues in Nursing, London: Learning Matters, (2010)
– Tetley William, Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part I) Q.C.

Case law:

– C 6/64 Costa v Enel, ECLI:EU:C:1964:66
– London Street Tramways Co. Ldt v. London County Council, 1898
– Mason v State. 2005, Court of Arkansas
– McFarlane v Tayside Health Board [2000], House of Lords
– Parkinson v St. James and Seacroft University Hospital NHS Trust [2001], All ER – Rees v Darlington Memorial Hospital NHS Trust [2002], House of Lords
– Young v. Bristol Airplane co., 1944, Court of Appeal
– Wason v Walter (1868), All ER

Legislation:
– Codice Civile, (Regio Decreto 16 marzo 1942, n. 262)
– Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 28 ottobre 1940) -Constitutional Reform Act, 2005
– Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298].
– Practice Statement, 1966
– Regio Decreto n. 12 del 1941

[1] The codes are entire bodies of general statutes which deal with generalities and guide the legislator in creating new statutes (written law) outside the code, dealing with more specific matters following the codified principles.

[2] “The common law is judicially created law that is developed on a case by case basis,” wrote Chief Justice Hannah of the Supreme Court of Arkansas in Mason v State.

[3] Even though it should be more accurate to describe it as an “uncodified” Constitution rather than an “unwritten one”, seen that these principles might be considered as stemming from several important documents of English history such as the Magna Charta and the Bill of Rights.

[4] From Latin maxim “stare decisis et quieta non muovere”, literally “let the decision stand and don’t unsettle what is

established”.

[5] The English Court’s Hierarchy: Supreme Court – Court of Appeal – High Court and Crown Court – subordinated courts such as Magistrates and County Courts.

[6] However, later on, the House of Lords also recognized the possibility for itself to avoid its own precedents, but only “when appears right to do so” with the Practice Statement, 1966. Likewise the Appeal Court can exceptionally overcome its pronounces. See Young v. Bristol Airplane co., 1944.

[7] Dissenting opinions constitute obiter dicta.

[8] The judge can distinguish between two similar cases due to some particular details that are decisive to a distinction, nut can also individuate a completely new and never adjudicated situation: this eventuality is called “matter of first impression”.

[9] Civil code, Penal Code, Administrative code etc.

[10] Moreover, art. 101 of Italian Constitution explicitly says that judges are subject to the law, therefore they cannot be allowed to create what they are suppose to be bound by.

[11] Art 1 disp. att. Codice Civile, (Regio Decreto 16 marzo 1942, n. 262).

[12] According to Art. 70 Cost.

[13] Nomofilachia, from greek νόμος and φυλασσο, literally protection of the law.

[14] Aimed by art 3 Cost.

[15] Art. 65, regio decreto n. 12 del 1941.

[16] Art. 384 Codice di Procedura Civile, (Regio Decreto 28 ottobre 1940, n. 1443 in G.U. 28 ottobre 1940).

[17] As a matter of fact, the Parliamentary law making process is extremely slow, while the judge-made law is able to be more responsive to the changing of society circumstances (Griffith and Tengnah, 2010).