The role of the Precedent in the English and the Italian Judicial system -Stare Decisis and Constant Jurisprudence (Part II)

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  1. 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. Nonetheless there are unwritten constitutional principles to rely on,[1] namely the principle of separation of powers, of supremacy of the Parliament and of the rule of law.

For what is our concern, the supremacy of the Parliament means that the it has the supreme legislative power: supremacy must be given to the result of its work, the statutes.[2]

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.

Indeed, it prevails in case of conflicts with case law: it is binding to judges, who have to adjudicate the cases in compliance with it. Addictionally, judicial decisions are not binding on the legislature, which so can pass new laws to overrule unpopular court decisions.[3]

Despite this, traditionally case law has always played a large role in law-making. The core of the law has 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.

Thus, the result is 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.”[4]

Hence, it follows that, according to the Stare decisis[5] principle, which governs the English system[6], 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[7] to the County Court in England[8]), and Horizontal[9], which binds the issuing court itself and the other on the same level[10].

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[11], 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[12], not binding rules but only persuasive justification of the judge’s legal reasoning.[13]

These are the substantial assumptions, but 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,[14] and s/he will issue a new decision, which will become a new binding precedent.[15]

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[16] 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.

  1. Italy

The Italian system, 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[17] 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.[18]

The law is in fact expression of the people sovereignty, exercised by directly electing their representatives in Parliament.[19]

And that is the reason why we will not find any reference to the jurisprudence[20] among the Italian legislative sources,[21] but only to the statutes.[22]

Precedents, so, in Italy are only persuasive, because, as article 2909 of Italian Civil Code[23] 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.

Mario Paolini

Con amicizia letto da Arnaldo Mitola

Notes

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

[2] However, it must be taken into account that the entrance of UK into the EU accorded to the EU law supremacy over any national provision, which therefore shall be made in compliance with it. For further information, see C 6/64 Costa v Enel.

[3] Professor Edward Richards, The Importance of Precedent.

[4]Black’s Law Dictionary, p. 1059.

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

[6]  The bond of the precedent is not the result of a statutory provision, but an independent choice of judges themselves. See London Street Tramways Co. Ldt v. London County Council, 1898.

[7] Replacing the judiciary function of the House of Lords since 2009, Constitutional reform act.

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

[9] The House of Lords recognized the duty of following their own decision in London Street Tramways ltd. v London County Council, 1898.

[10] 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

[11] From Latin, literally “the reason for the decision”.

[12]  From Latin, literallyother things said”.

[13] Dissenting opinions constitute obiter dicta.

[14] See McFarlane v Tayside Health Board [2000]; Parkinson v St. James and Seacroft University Hospital NHS Trust [2001]; Rees v Darlington Memorial Hospital NHS Trust [2002]; about how same cases of failed sterilization lead to different decisions due to the different health state of the new born and its parents. (Havery)

[15] 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”.

[16] “When appears right to do so” is the wording of the Supreme court in the Practice Statement of 1966. See supra note 21.

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

[18] 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.

[19] Art 1, Costituzione della Repubblica Italiana, [Gazzetta Ufficiale 27 dicembre 1947, n. 298].

[20] Synonymous for case law

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

[22] Also here we have to take into account the supremacy of Eu Law. See supra 12

[23] Art. 2909 Civil Code, see supra 32.

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

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