THE JUDICIAL PRECEDENT IN THE ENGLISH AND AMERICAN TRADITION

Abstract

Staredecis et non quieta movere is a cardinal principle of the legal tradition of common law systems, by virtue of which binding value is attributed to judicial precedent. According to the letter of the aforementioned brocardo, certain previous decisions (rectius, the rule of law on the basis of which the judgment was previously made) are capable of giving rise, on the part of the judge who decides at a later time, to a legal obligation which consists, precisely , in remaining on what was decided. This supervening judge must not agitate what is calm: that is, he cannot deviate from the previous one, but must conform to it. This is the assumption on which the doctrine of binding precedent is based: what intimately characterizes, albeit with different intensity, the common law systems. The reality, however, appears much more complex and full of historical-cultural implications that have profoundly conditioned the doctrinal evolution and the jurisprudential application of the rule; in particular, as will be seen at the time, significant differences are recorded between the same English and North American systems. As a preliminary consideration, it seems acceptable to consider the doctrine of precedent as a typical characteristic of common law countries, insofar as a basic conceptual premise is clarified: the rule stare depositis should not be confused with the recurring practice of following previous. The latter, in fact, can be said to be consistent with a canon of justice, closely connected with the principle of equality, as well as with the pursuit of the value of legal certainty and the predictability of decisions, typical of the entire Western legal tradition, according to which cases analogues should be decided in a similar way. It is therefore a modus decidendi which, as such, also belongs to civil law systems. Otherwise, it is the presence of the legal obligation not to deviate from a previous datum that is peculiar to the common law family, and on a historical-cultural level extraneous to civil law systems, although the reference to the legal obligation should be understood in the light of the necessary problematization that accompanies the entire development of the theme. It therefore emerges right now that with respect to a "social demand that has made itself felt at different stages of the evolution of every legal system" - that is, to a need for certainty, already pursued in various ways in the different legal systems - the rule of staying decis constitutes a binding formal instrument which «condenses in itself a model of institutional response». And at the same time it is anticipated that it is a bond that has never been formalized, not hetero-imposed through acts of direct legislation, but self-imposed by the courts themselves in the construction of judicial practice.