On the Philosophy of Precedent

On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume III Edited by Thomas Bustamante and Carlos Bernal Pulido ARSP Beiheft 133 Archiv für Rechts- und Sozialphilosophie Franz Steiner Verlag

On the Philosophy of Precedent Edited by Thomas Bustamante and Carlos Bernal Pulido

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 133

On the Philosophy of Precedent Proceedings of the 24 th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume III Edited by Thomas Bustamante and Carlos Bernal Pulido Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über <http://dnb.d-nb.de> abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. Franz Steiner Verlag, Stuttgart 2012 Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-10150-9 Nomos Verlag: ISBN 978-3-8329-7625-5

TABLE OF CONTENTS Thomas Bustamante / Carlos Bernal Pulido Introduction.... 7 I ON THE STRUCTURE AND THE JUSTIFICATION OF PRECEDENTS Pierluigi Chiassoni The Philosophy of Precedent: Conceptual Analysis and Rational Reconstruction.... 13 Marina Gascón Rationality and (Self) Precedent: Brief Considerations Concerning the Grounding and Implications of the Rule of Self Precedent.... 35 Carlos Bernal Pulido Precedents and Balancing.... 51 Thomas Bustamante Finding Analogies Between Cases: On Robert Alexy's Third Basic Operation in the Application of Law.... 59 II ON THE STRENGTH AND THE USES OF PRECEDENTS Larry Alexander Precedential Constraint, Its Scope and Strength: A Brief Survey of the Possibilities and Their Merits.... 75 Patrícia Perrone Campos Mello The Role of Precedents as a Filter for Argumentation.... 83 III PRECEDENTS IN CONTEMPORARY LEGAL CULTURES Victoria Iturralde Precedent as subject of interpretation (a civil law perspective).... 105 Zhang Qi On the Method of Searching for Guiding Cases on the Basis of Trial Experience.... 119 Ewoud Hondius Precedent Revisited... 135 Authors... 143

THOMAS BUSTAMANTE / CARLOS BERNAL PULIDO INTRODUCTION In this volume, which contains the 3 rd issue of the Proceedings of the 24 th IVR World Congress, held in Beijing in the year of 2009, the reader will find a selection of papers presented at that International Congress on the general theme of The Philosophy of Precedent. The foundations, legal nature, structure, strength and uses of the case law were vividly discussed at two Special Workshops especially dedicated to the study of legal precedent, where the papers collected in this issue were debated by a large number of scholars from around the world. The attention that the theme received at the Congress indicates a trend of growing interest on the topic of precedent among legal philosophers, legal theorists and practitioners from all of the legal families and traditions, including those of the socalled Civil Law Systems. Taking into consideration this movement towards the universality of precedent-based reasoning in legal discourses, the essays comprised in this volume attempt to provide an account of legal precedent which explains in a reasonable way the connections between theoretical issues on the nature of precedent and practical queries over its foundations, structure, strength and uses in contemporary legal systems. In effect, under the influence of authors such as Dworkin, Alexy, MacCormick, Marmor, Waldron and many others, a large part of contemporary legal theory is dedicated to some sort of normative jurisprudence. One of the main features of such type of legal theory is that it is particularly concerned with the justification of legal decisions and with the rationality of legal reasoning. In this context, it becomes crucial to determine the contents and the argumentative uses of a jurisprudential concept like that of precedent. In fact, it can be argued that some basic legal principles like certainty, coherence, fairness and impartiality are endangered if the law is not applied with some sort of adherence to judicial precedent. The relationship between legal philosophy and legal precedent is one of a dual character. On the one pole, to apply a precedent to a novel case we need a reasoning to justify the connection or similarity between the two cases, and this reasoning can be characterized at least in part as a philosophical argument; on the other pole, there can be no rational coordination in a legal system if its officials or the bodies in charge of its application do not follow their own precedents to a certain extent. The former pole shows us that one cannot avoid theoretical/philosophical arguments, both of analytical and normative nature, if one is to apply precedents in a rational way. That is to say, there is no clear distinction between theoretical or philosophical arguments on the one hand and strictly legal arguments on the other. When judges refer to a precedent, they are inevitably asked to adduce practical reasons in support of the application of the precedent to the novel case. There are multiple ways in which this can be done. First, whenever a judge accepts a precedent which is not binding she must commit herself to the reasons used by the previous court to support the decision that she is quoting: Taking an affirmative position on a validity claim generates this illocutionary obligation which links reasons to

8 Thomas Bustamante / Carlos Bernal Pulido motives. 1 Second, any application of a legal precedent needs to be supported by an analogy between cases which requires a complex theoretical discourse about the similarities and the differences between cases. And thirdly, to distinguish and compare precedents judges have the burden of providing reasons to carve exceptions in legal rules or to re-classify the facts of the case in order to leave them out of the scope of a precedent prima facie applicable to the case. In all these situations, jurists need practical reasons in order to justify their arguments, claims and decisions. The latter pole, in turn, shows that the obligation to consider precedents (which does not necessarily imply a strict obligation to follow every precedent) is a condition of rationality for any legal system. As Neil MacCormick and Robert Summers put it very clearly, to follow precedents is a requirement of practical human reasoning, 2 for there can be no rational justification of a social practice without universal application of the same rules. It is therefore of vital importance to elucidate the philosophical problems generated by the technique of precedent. Jurists need both a method for interpreting and applying legal precedents and a theoretical apparatus to enable them to determine the force and the status of legal precedent in ordinary legal argumentation. What once was regarded as a doctrine valid only within the boundaries of common law is nowadays correctly perceived as a universal problem of legal philosophy and of its most practical branch: the normative theories of legal argumentation. With these considerations in mind, the studies compiled in this volume will outline some of the most important aspects of a philosophical theory of precedent. These essays will explore and explain issues such as the structure of legal precedents, their philosophical foundations, their relevance for legal theory and practice and the methodological problems that jurists are likely to face when recognizing, interpreting and following them. The essays are divided into three sections, being the first on the structure and the foundations of legal precedents; the second on their strength and the practical uses in legal discourse; and the third on the practice of precedents in contemporary legal cultures. The first section, On the Structure and the Justification of Precedents, begins with Pierluigi Chiassoni s paper, which undertakes a rigorous structural analysis of precedents with a view to reconstruct the core concepts related to precedent-identification and application, which have to do with the definition of the ratio decidendi, the interpretation of precedents and their practical relevance. The paper is followed by Marina Gascón s essay on the notion of self-precedents and the rationality of the legal system. While the traditional approaches to legal precedent consider them as valid due to the authoritative element comprised in the law-making power of the courts, Gascón expounds another element that is equally important to understand the foundations of precedent, which refers to the Kantian principle of universalizability, which is at stake even when there is no authoritative rule determining the obligation to follow precedents, as we can see in the case of self-precedents. Carlos Bernal Pulido and Thomas Bustamante s papers, in turn, are concerned more spe- 1 Klaus Günther, Communicative Freedom, Communicative Power and Jurisgenesis (1996) 17 Cardozo Law Review 1035, at 1041. 2 Neil MacCormick and Robert Summers, Introduction in MacCormick; Summers (eds) Interpreting Precedents (Dartmouth, Aldershot 1997), 4.

Introduction 9 cifically with the structure of precedents and of the arguments based on them in the discourses of justification of legal decisions. Bernal s paper deals with the connection between balancing and precedents in adjudication, particularly in civil law jurisdictions. He observes that in civil law jurisdictions balancing has become one of the most important methods for constitutional reasoning, since the biggest part of the constitutional norms has the structure of principles. None the less, constitutional courts tend to import from the common law the methods of precedent-based legal reasoning, which start from a ratio decidendi that has the typical structure of a rule. This is, according to the author, the precedent-balancing paradox, which can be stated thus: While the doctrine of precedent requires the application of rules, balancing is the way to apply principles. Yet, by applying Alexy s theory of fundamental legal rights to solve this dilemma, Bernal shows us not only that it is possible to dismantle this paradox, but also that balancing is required to make reasoning with precedents a rational form of legal argument. Bustamante s paper, in turn, starts with Robert Alexy s description of Analogy or Comparison of Cases as a basic operation in the application of law, in order to show the connections between rules, principles, and analogical application of the rules derived from legal precedents. The main points of the paper are, first, to defend the claim that analogy needs to be grounded on a balancing of the principles which stand behind the rules embedded in the decision taken as a paradigm, and, second, to show that the better way to explain this connection is to understand analogy not as a basic operation in the application of law, as Alexy does in his recent works, but rather as a judicial development of the law on the basis of balancing. The second section, on The Strength and the Uses of Precedents is less concentrated on analytical issues and more concerned with the pragmatic aspects of precedent-based reasoning. The opening paper, by Larry Alexander, examines how broadly precedents constrain (their scope) and how strongly they do so (their strength). The analysis is mainly directed towards the issue of overruling precedents and the reasons that are given for the fidelity to precedent or for the departure from it, and leads to the conclusion that overruling precedents turns out to be only an instance of the more general problem of the rationality of rule following. The paper is followed by Patricia Perrone Campos Mello s essay, which concentrates on the roles and the limits of a theory of precedents, which is depicted as connected to a set of values such as legal certainty, equality, legitimacy and efficiency in the courts system. The key function of precedents, as the author argues, is to serve as a filter for legal argumentation, guiding litigants and judges on issues to be discussed and considered in the decision of the case. The third section, at last, on Precedents in Contemporary Legal Cultures, attempts to understand how the notion of precedent performs its functions in some of the different legal traditions. The opening paper, by Victoria Iturralde, focuses on civil law systems, where legal theorists still tend to assume that legislation is the only and exclusive source of law. Against this expectation, however, precedent may work either as a formal source or a material source of law in these systems, and they do play an active role in the operation of the legal system. Hence, according to the paper, they need a more developed theoretical account on how one is to interpret them in the application of law, which is the object of the inquiry. Zhang Qi s paper, in turn, focuses on the practice of precedent in contemporary China, whose

10 Thomas Bustamante / Carlos Bernal Pulido court system was modified quite recently, in 2005, to establish a more strict approach to legal precedent which rules that some guiding cases are to be authoritative. The paper intends to answer, therefore, the questions of how guiding cases are to be found and how one is to evaluate the similarity between cases in the Chinese legal practice. Finally, Ewoud Hondius presents his conclusions on a round-table which he organized in 2006, at the Congress of the International Academy of Comparative Law, as well as some new developments on his empirical research on the different approaches to precedent that are found in contemporary legal cultures. His conclusion, in short, is that there are still conflicting tendencies in civil law and common law approaches to legal precedent. The editors would like to thank the authors of the chapters of this volume for the their relevant contributions, as well as Prof. Zenon Bankowski, the IVR Committee and the dedicated members of the Chinese Law Society, who worked very hard to help them select the papers comprised in this volume amongst hundreds of papers received for the publication of the proceedings, and who trusted them the job of editing this volume. But, above all, they wish to thank Lara Pratt, who generously agreed to act as a reviser of the final proofs of the volume.

I ON THE STRUCTURE AND THE JUSTIFICATION OF PRECEDENTS

PIERLUIGI CHIASSONI THE PHILOSOPHY OF PRECEDENT: CONCEPTUAL ANALYSIS AND RATIONAL RECONSTRUCTION A. PHILOSOPHY OF PRECEDENT: TWO BASIC VARIETIES Organizers kindly directed to submit papers in the philosophy of precedent, concerning: (a) the structure of legal precedents, (b) their philosophical foundations, (c) their relevance for legal theory, (d) their relevance for legal practice, and, last but not least, (e) the methodological problems jurists and judges must cope with in order to recognize, interpret, and follow precedents. A philosophy of precedent roughly, any critical inquiry upon the afore-mentioned subjects may be of two, quite different, kinds. To begin with, it may be conceived as a normative theory about judicial precedent: as a piece of normative jurisprudence or, in a wider sense, of the old science of legislation of Enlightenment philosophers. A philosophy of precedent of this kind may be characterized as a discourse, regarding a given legal order or set of legal orders, that purports to provide, and usually provides, answers to legal policy questions concerning the axiologically proper ways of (i) understanding precedents, (ii) defining their practical relevance within a legal order (i.e., their status as a source of positive law, if any), (iii) defining the principles that ought to make up the doctrine of precedent, and (iv) dealing with precedents from the methodological standpoints of interpretation, use, and reasoning. The axiological adequacy of any such theory clearly depends, in turn and ultimately, on some background ethical view: usually, on some principles of public morality, concerning the legal institutions of a wellordered society, which the philosopher is committed to. Secondly, and contrariwise, a philosophy of precedent may also be conceived as an analytical theory: a piece of conceptual analysis, the core business of which is dealing with the terminology, the concepts, and, at a meta-theoretical level, the theories concerning judicial precedent as regards to a certain legal culture, in order to get to a better terminology, better concepts, and better ways of thinking, from the standpoint of rationality-values like clarity, precision, discrimination, and justification. There are obvious connections between the philosophies of precedent of the two varieties above. On the one hand, a normative philosophy of precedent is doomed to failure to be dwelling in the rhetorical world of hazy discourses unless it is enlightened, supported, and, if necessary, cured, by an equipment of clear and distinct concepts, views, and modes of thought. On the other hand, an analytical philosophy of precedent, to do its job properly, needs full consciousness about the fact that judicial precedent is a matter for ideological, value-disputes and allegiances. The present paper purports to outline a few, tiny, pieces of a philosophy of precedent in the analytical mood. Taking up the standpoint of a piecemeal, explanatory, axiologically uncommitted, analysis, I will deal in turn with three issues:

14 Pierluigi Chiassoni Firstly, an analytically proper definition of the key notions of ratio decidendi and obiter dictum; Secondly, an analytically proper theory of the interpretation of judicial precedents (really, an explanatory meta-theory, as we shall see); Thirdly, and finally, an analytically proper theory of the practical relevance of judicial precedents. B. A FEW PUZZLES Before proceeding along the lines above, however, let me say a few words about two subjects concerning judicial precedents, which were mentioned in the organizers list at the outset, and I am apparently discarding in my present inquiry: to wit, the structure of precedents and their philosophical foundations. 1. THE STRUCTURE OF PRECEDENTS What is the structure of precedents? Such a question, though it may seem a matter of course, is nonetheless apt to be misguiding. More cautious questions come to the forefront. Do precedents have a structure? Is there really something that is the structure of precedents? What are we looking for, when we ask for the structure of precedents? Clearly, we cannot provide any reasonable answer to these questions, unless we have previously established and made clear what exactly do we mean by the slippery phrase judicial precedent. No fewer than three different, though related, candidates show up here. To begin with, a judicial precedent may be considered to consist in a judicial decision (i) as a whole the opinion, including the ratio decidendi or holding, plus the individual determinations for the individual case at hand, (ii) pronounced in a previous time t -1, (iii) usefully reported (i.e., reported in such a way as to be liable to be known and used in the future by lawyers and judges working in the concerned jurisdiction), and (iv) bearing on the same, or like, (kind of) facts and questions as the facts and questions to be adjudicated at present time t. This I will call precedentjudgment. Further, a judicial precedent may be considered to consist, more narrowly, in the sole ratio decidendi, or holding, of a judgment pronounced in a previous time t -1, usefully reported, and bearing on the same, or like, (kind of) facts and questions as the facts and questions to be adjudicated at present time t. This I will call precedentholding, or precedent-ratio decidendi. Finally, a judicial precedent may be considered to consist, again in a narrow way, in the individual determinations of a judgment pronounced in a previous time t -1, usefully reported, and bearing on the same, or like, (kind of) facts and questions as the facts and questions to be adjudicated at present time t. This I will call precedent-order. Structure is a slippery word too, though. The structure of something may be taken to be, in turn: