One of the main moral costs of stare decisis lies in the continuous possibility of entrenching morally deficient decisions in the law. Although legal systems usually make provision for dealing with morally deficient precedents, there are cases in which the legal obligation of later courts to follow one of these precedents is undefeated. This possibility affects the overall justification of stare decisis. One traditional answer to this problem consists in accepting this moral cost, on the belief that the benefits of (...) stare decisis outweigh it. On this view, when there is an undefeated legal obligation to follow a morally deficient precedent, the court must simply follow precedent. In this article, I question this approach and defend an alternative solution. I argue that, under some conditions, a court facing a morally deficient precedent should have the power to either follow the precedent or suspend its application to the parties by ordering a temporary stay of proceedings and referring the case to a higher court with power to overrule the precedent. This proposal entails exercising an equitable power recognised by the legal system, which I defend against three possible objections. (shrink)

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent – even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this (...) runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent – stare decisis – but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty. (shrink)

Philosophical Foundations of Precedent offers a broad, deep, and diverse range of philosophical investigations of the role of precedent in law, adjudication, and morality. The forty chapters present the work of a large and inclusive group of authors which comprises of well-established leaders in the discipline and new voices in legal philosophy. The magnitude of the resulting project is extraordinary, presenting a diverse array of innovative and creative philosophical investigations of the practice of adhering to past decisions, in law and (...) allied fields of practical reasoning. And by the same token, the contributions elucidate the reasons that courts and other decision-makers may have for departing from what has been done before. The phenomena under investigation include the law and practice of common law and civil jurisdictions around the world. In addition to its fundamental relevance to common law jurisdictions, this work will be of broad and significant interest to theoretically minded audiences in continental Europe, Latin America, and Asia because it involves an extensive study of practices of precedent in civil law systems as well as common law systems. (shrink)