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 The Doctrine of Stare Decisis

                        Like reason makes like law.
                         相似的理由产生相似的规则。
                                                                  
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The Doctrine of Stare Decisis
I. WHAT IS STARE DECISIS
The most obvious distinction between civil law and common law systems is that civil law system is a codified system, whereas the common law is not created by means of legislation but is based mainly on case law. The principle is that earlier judicial decisions, usually of the higher courts [1], made in a similar case, should be followed in the subsequent cases, i.e. that precedents should be respected. This principle is known as stare decisis [2] and has never been legislated but is regarded as binding by the court. Under the doctrine of stare decisis (which is Latin for "to abide by [3] decided cases" or let the decision stand), a rule of law framed in one case under common law will serve as binding authority [4] to resolve future cases that are the same or analogous.
    Developed in England in the thirteenth century, stare decisis is at the heart of the common law system. Under King Edward I, common-law courts began keeping records of previous cases to guide judges in deciding current ones. This practice helped make the common law more objective and predictable. Like statutes, previous cases became forms of notice of illegal or tortious behavior. If you want to bring a lawsuit against someone [5], you can assess your chances for success by reviewing previous, similar lawsuits. In the same way, you can determine which defense [6] will serve you best if you have a suit brought against you.
In contrast to common law, the case law in civil law systems does not have binding force. The doctrine of stare decisis does not apply to civil law courts, so that court decisions are not binding on lower courts in subsequent cases, nor are they binding on the same courts, and it is not uncommon for courts to reach opposite conclusions in similar cases. Under civil law, the courts do not create the law, but only apply and interpret it. In practice, however, the higher court decisions certainly have a certain influence on lower courts, since judges of lower courts will usually take into account the risk that their decisions would probably be reversed [7] by the higher court if they contradict the higher court decisions. Judges normally try to avoid the reversal of their decisions by higher courts as if too many of their decisions are reversed their promotion may be adversely affected. Hence, even though in civil law systems the case law formally has no binding force, it is generally recognized that courts should take into account prior decisions.
Included under the principle of stare decisis is the concept of precedent. A precedent is a decided case that furnishes a basis for determining later cases involving similar facts or issues. Case opinions are collected and published in book volumes known as "reporters [8]," and these opinions now become precedents for future cases involving similar facts and legal issues.
Stare decisis operates in the context of a hierarchy of courts in a jurisdiction. Rules of law framed by high courts are binding on the lower courts of the jurisdiction. Rulings by divisional courts [9] that have co-equal status are mutually regarded as persuasive authority. Whether the decision is a binding or a persuasive precedent will depend upon the origin of a court decision. Binding precedent must be followed by a court, whereas persuasive precedent need not be followed by a court. Decisions from the highest court in Massachusetts on a certain legal issue would be binding on all lower courts of the state. However, a decision in Maine or any other state on an undecided legal issue would only be persuasive in a Massachusetts court. The exception is that decisions from the U.S. Supreme Court are binding for all state and federal courts. A precedent acts as a legal guide in determining which law to apply to a client’s problem. It sets the standards in our society, and it ensures a degree of fairness of judgment by our courts.
II. ADVANTAGES AND DISADVANTAGES OF STARE DECISIS
To locate prior precedents, it is helpful to know the citation [10] for the case where a precedent is found. For example, a case opinion cited as 313 N.W.2d 601 (1982) can be located in volume 313 of the Northwestern Reporter, second edition, page 601. The extensive reliance of our legal system on judicial decisions has both advantages and disadvantages.
a. Advantages
Stare decisis arose from the desire of courts as well as society for certainty and predictability in the law. In addition, following precedent was expedient. The common law, through precedent, settled many legal issues and brought stability into many areas of the law, such as contracts.
b. Disadvantages
First, notwithstanding the fact that common law arose out of a desire for certainty and is designed to create it, common law creates a great deal of uncertainty in the law. The precedent may require hundreds of hours of research time. Furthermore, conflicting precedents frequently are discovered.
Second, in many cases the law cannot be found by searching cases.
Third, there is an important distinction between precedent and unnecessary opinions of judges. Frequently courts make comments on matters not necessary to the decision reached. Such expressions, called dicta [11], lack the force of a judicial settlement. Strictly speaking, they are not precedent that courts will be required to follow within the rule of stare decisis. However, dicta may be followed if they are sound and just, and dicta that have been repeated frequently are often given the force of precedent.
Fourth, one of the major reasons that the case law system leads to uncertainty is that a precedent may be changed or reversed. Since case law is susceptible to change, absolute reliance on it is not possible.
III. QUALIFICATIONS OF STARE DECISIS
The doctrine of stare decisis has four important qualifications:
First, the doctrine does not apply if the facts of the later case are materially different from the earlier case that created the rule of law. Consequently, if a judge can "distinguish" [12] the facts of the earlier case, it is not used as precedent.
Second, the doctrine does not apply if the state of the law changes. So subsequent legislation can render a common-law decision invalid, after which it has no precedential effect.
Third, only the central aspect of the court decision (called the ratio decidendi) is given precedential effect. Extraneous statements of fact or law that appear within a case (called obiter dicta) are not binding on later courts.
 Finally, the modern view of stare decisis allows courts to depart from prior decisions when rigid adherence to precedent would lead to injustice in a particular case and unduly restrict the proper development of the law. This, however, is done in only the most unusual circumstances, since the very reason for relying on judicial precedent is to lend certainty to the law.
The doctrine of stare decisis is most limited in constitutional cases. The Constitution reigns supreme over case law as well as statutes. Sometimes, a constitutional amendment changes the precepts on which prior cases were based. (The Civil War Amendments, for example, effectively overruled the Dred Scott [13] decision denying black slaves the rights of citizenship). Sometimes different judges interpret the Constitution differently and write dissents [14]. In any event, judges are bound by the Constitution, not by previous cases construing it.

                                                                  
Glossary
abide by遵守、依照
analogous 类似的，可比拟的
binding authority有约束力的法律依据
bring a lawsuit against sb. 对某人提起诉讼
decidendi 判决理由
defense 抗辩事由
dicta, dictum的复数形式，法官个人意见，附带意见
dissent分歧，异议
divisional courts高等法院各分庭
expedient有用的；有利的
higher court上级法院
notwithstanding尽管；即使
obiter dicta附带意见
persuasive authority有说服力的法律依据
persuasive precedent有说服力的先例
predictability 可预见性
render正式宣布
reporter 案例汇编
reverse 撤销，推翻
take into account考虑，重视
Notes (注释)
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 [1] higher court：上级法院（a court to which a case is appealed）。也可称为“court above”、“upper court”。
 [2] stare decisis: 遵循先例原则；判例拘束原则。在英美法中判决（判例）的效力在程度上有两种：一种是有说服力的（persuasive）效力，只具有参考价值；另一种是有约束性的（binding）效力，法院应当遵循，后者又有相对效力和绝对效力两种学说。在英美法实践中，the doctrine of precedent和the doctrine of stare decisis是常常是通用的，美国习惯用后者。
 [3] abide by:（遵守、依照 ）to act in accordance with or in conformity to。
 [4] binding authority：有约束力的法律依据。authority在法律英语中常有“法院或行政机构之裁定、判例”（a judicial or administrative decision cited as a precedent）之意。与binding authority相对应的是persuasive authority即有说服力的法律依据（authority that carries some weight but is not binding on a court）。
 [5] bring a lawsuit against sb. 对某人提起诉讼。
 [6] defense 抗辩事由（a defendant’s stated reason why the plaintiff or prosecutor has no valid case）。
 [7] reverse：撤销，推翻。该词的名词形式是reversal，通常指an appellate court’s overturning of a lower court’s decision。
 [8] reporter 案例汇编。Reporter 也可称为report，通常表示a published volume of judicial decisions by a particular court of group of courts. Generally, these decisions are fist printed in temporary paper-back volumes, and then printed in hardbound reporter volumes. Law reports may be either official and unofficial(published by a private publisher). Court citations（卷宗号） usually include the names of both the official and unofficial reports。
 [9] divisional courts高等法院各分庭。在英国，高等法院各分庭大概包括如王座法院（King’s Bench Division/Queen’s Bench Division）、衡平法庭（Chancery Division）、家庭分庭（Family Division）等。
 [10] citation 卷宗号。我们首先来看一下《布莱克法律字典》中citation的定义：A reference to a legal precedent or authority, such as a case, statute, or treatise, that either substantiates or contradicts a given position. (p.237) 7th edition. 由于a citation is a reference to a legal authority，因此，citation必须要有一个标准，这样以后的参考者才容易检索得到。正如《布莱克法律字典》所指出的一样，Citation formats exist for many different types of legal sources including cases, statutes and secondary legal materials. Understanding the basic format for each of these different types of sources will enable the researcher to more independently locate materials in the law library.
案例之中的卷宗号通常包括下列几个部分：
a.案件双方当事人姓名（the names of the parties involved in the lawsuit）；
b.包含案件全文的汇编卷号（ the volume number of the reporter containing the full text of the case）；
c.该案例汇编的缩写名称（the abbreviated name of that case reporter）；
d.案例开始的页码数（the page number on which the case begins）；
e.案件判决年份（the year the case was decided）；有时还包括
f.案件判决法院（the name of the court deciding the case）。
举例说明: Hebb v. Severson, 201 P.2d 156 (Wash. 1948). 在这个例子当中，Hebb是原告（plaintiff），Severson 是被告（defendant）。 我们可以在《太平洋汇编》第二辑201卷第156页（volume 201 of the Pacific Reporter Second Series beginning on page 156）找到这一案例。该案是由华盛顿州最高法院（Washington State Supreme Court）于1948年判决的。
再如，例如：93 N.J324, 461 A. 2d 138 (1983)，这说明该案出自《新西汇编》第93卷，第324页，以及《大西洋汇编》第二辑第138页，该案判决于1983年。此处，A 是Atlantic Reporter的缩写。像这种指明两个或两个以上出处的卷宗号叫作：“平行卷宗号”，其英语表达为“parallel citation”，意思是“An additional reference to a case that has been reported in more than more reporter.”广义上卷宗号包括上述一、案例名称；二、判决法院。
 [11] dicta是dictum的复数形式，指法官个人意见，附带意见。这种意见在论证时有说服论述的价值，但不能作为判例作为约束以后的案件，也称为obiter dictum。
 [12] distinguish识别，通常指先例的识别。
 [13] 南北战争（1861-1865）之前，美国历史上最著名的人身保护令诉讼是“斯科特单方诉讼案”（Ex Parte Dred Scott）。斯科特是一名内科医生的奴隶，他的主人在去世时曾答应释放斯科特。但是，主人死后，斯科特仍被作为奴隶而限制人身自由。斯科特于是向联邦法院发出请求，申请人身保护令状。后来联邦地区法院签发了令状并得到联邦上诉法院的支持。但是，联邦最高法院罗杰.B.唐尼（Roger Tanney）认为斯科特作为奴隶并不是联邦宪法中的“人”，他认为像斯科特这样的黑人奴隶仅仅是“财产”，因此无权向联邦法院申请人身保护令状。最高法院因而推翻了联邦地区法院所签发的令状。唐尼的判决后来由于美国宪法的第13条修正案的通过被推翻。1868年通过的宪法第十四条修正案赋予黑人奴隶以公民身份。
附美国宪法第13条修正案：Amendment XIII (1865)
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
第一款 在合众国境内受合众国管辖的任何地方，奴隶制和强制劳役都不得存在，但作为对于依法判罪的人的犯罪的惩罚除。
第二款 国会有权以适当立法实施本条。
 [14] dissent，分歧，异议。常用来指在法官评议案件中，少数法官不同意多数法官的意见，也称为“dissenting opinion”