In search for legal certainty.
Precedent and predictability of court decisions
in the common law tradition

Author: Att. Tymoteusz Zych, Ph.D.
Associate Professor / Rector of Collegium Intermarium


The institution of binding judicial precedent has been considered in the common law tradition as a factor which increases the level of predictability of court decisions. This approach may prima facie seem surprising from the perspective of a lawyer educated in continental Europe. The binding precedent was treated with reserve in the classical positivist legal paradigm adopted in civil law countries. The French term superstition du cas, sometimes used to describe the common law principle of stare decisis, significantly illustrates the distance to the binding precedent characteristic of continental lawyers. Modern civil lawyers identified the idea of ius certum with the codification project and the assumption that law should be created by a rational legislator, who assures its uniform, consistent, complete and internally noncontradictory character. Statutory norms were supposed to serve as premises of infallible syllogistic inferences. Whereas jurisprudence of continental Europe emphasizes the rulemaking nature of a court decision in a case for which there has been no precedent (in common law referred to as a “case of first impression”), the common law puts much more emphasis on the fact that the precedent rules limit a judge’s arbitrariness in subsequent cases in which similar factual circumstances arise. The Author makes an attempt to define the dependencies between the development of the notion of the predictability of court decisions in the context of common law’s history and the process of formation of the modern doctrine of stare decisis. The concepts of predictability of court decisions characteristic of the most important schools in the history of common law jurisprudence are identified. Dependencies between the models of predictability of court decisions and the concepts of judicial precedent characteristic of those approaches are also analyzed. Moreover, the Author tries to identify the basic philosophical precepts which have influenced the evolution of the concept of predictability of court decisions adopted in the common law system and the evolution of the doctrine of stare decisis. A further matter of analysis is the influence of the changing perception of predictability of court decisions on the development of the doctrine of judicial precedent in decisions of English and American courts. The analysis conducted indicates that the development of the modern concept of predictability of court decisions is strictly correlated with the process of formation of the doctrine of binding judicial precedent. The claim to ensure legal certainty was one of the most prominent factors which influenced the shape of development of the stare decisis doctrine in the common law system. In the 20th century, criticism of the modern concept of predictability of court decisions was almost always accompanied by criticism of the doctrine of binding judicial precedent. Studies have thus shown that the scope of the binding precedential rule is impossible to describe on the basis of simple positivist categories of validity and invalidity. The varying extent of the precedential decisions’ binding force in the common law countries can rather be characterized in terms of gradation instead of a dichotomic division. Due to the nature of common law, it is hard to speak of an objective binding force of a precedent. The level of a precedent’s binding force may be evaluated only in the context of a particular case at stake and of the dependencies between the factual circumstances of the case analyzed and the precedential case itself. The rule set in a particular precedential ruling may have varying levels of binding, depending on the context of a case in which it is applied. In the comparative perspective, English and American case-law and legal thought is taken into account, whereas jurisprudence and court decisions from other common law countries are referred to only when they constitute relevant context of the problem studied. The diachronic perspective of the work encompasses the period of formation of the common law tradition, from the 13th century to the Second World War. Selected post-war works of legal realists and the jurisprudence of subsequent decades were analyzed only to the extent necessary to include the full context of the problems analyzed. The first chapter analyses the role of legal precedent as well as the evolution of the concept of predictability of court decisions in English jurisprudence and in the case-law of the Middle Ages and the early modern era. The second chapter analyses the formation process of the modern concept of predictability of court decisions and the formation of the binding rule of precedent. The chapter encompasses the analysis of the process of abandonment of Aristotelian paradigm in methodology in the modern era and the rise of the predictability of court decisions to the role of the main goal of legal theory. Chapter three analyzes the standpoints of American sociological jurisprudes and legal realists, who undertook thorough criticism of the modern concept of predictability of court decisions. The doctrine of binding judicial precedent, which in the common law was perceived as a guarantee of predictability of court decisions, was the object of their criticism along with the “myth of legal certainty”. The analysis conducted indicates that, from the perspective of predictability of court decisions, the most important aspects of the rule of stare decisis are: a) adequate conceptualization of ratio decidendi, which should include adoption of methods of reasoning that would allow distinguishing of the legally-binding part of the decisions on the basis of the most objective criteria possible; b) adoption of a method which reduces arbitrariness of the application of precedential rules; c) determination of non-arbitrary methods allowing distinguishing of legally relevant material facts of the case; d) limitation or exclusion of the possibility of overruling binding precedents. In contemporary classifications precedent is most often defined either as a rule or as a reflection of a principle or principles of law. It has been sometimes also defined as a collection of arguments. The analysis conducted confirms that those conceptualizations do not need to be treated as competing ones, but can be considered as a description of various aspects of the precedent’s functioning in the common law system. The understanding of precedential decisions as reflections of legal principles is possible to identify on the basis of tendencies in judicial practice, which has been present in English law since the middle ages, should be distinguished from the strictly understood doctrine of stare decisis, which includes a number of specific structural elements and models of reasoning. Presently, the most common understanding of precedent in the common law tradition, generally shaped in the second half of the 18th and the early 19th century. It assumed that the content of a precedential rule could be identified on the basis of the reasoning expressed in the opinions issued by the judges. According to this model, the term ratio decidendi may be attributed both to a rule expressed in an explicit way and – what occurs more often – a rule which has not been expressed directly but constitutes an implication of the reasoning adopted in the opinion. In this model, within the process of the application of law, the crucial element is the possibility of determining most objective criteria possible, which allow distinguishing between the binding and non-binding reasoning included in the opinion. Therefore, the definition of the essence of ratio decidendi is of major importance. Several models of ratio decidendi have thus been proposed: a) a rule formulated explicite or implicite in judges’ opinions justifying the decisions, essential for the content of precedential ruling (identifying ratio decidendi occurs through the use of the inversion test involving assessment of whether after changing the contents of the rule in question by negating its meaning, a change in the ruling’s content would also take place); b) a rule formulated explicite or implicite in judges’ opinions, sufficient for reaching a decision in a precedential case; c) a bond between material facts of the case with the legal consequences decided by the court, in which the contents of judges’ opinions justifying the decisions is relevant as long as it allows for determining the legally relevant elements of the factual circumstances; d) minimum and maximum normative contents of a precedent ruling, according to which the limits of ratio decidendi are set by the precedent’s normative minimum, which must not be negated by the judge, and the most far-reaching legal consequences which might be formulated on the basis of judges’ opinions. Various reservations were formulated in context of each of these models, proving that neither of the proposals might be considered infallible by its nature. Attempts within the common law jurisprudence to formulate the concept which would allow to make a fully objective distinction between the binding and non-binding part of a ruling have been unsuccessful. The doctrine of stare decisis adopted in the common law judicial practice is complex in its nature, founded on specific models of reasoning which were shaped in the course of centuries. Throughout the history of the common law, a number of attempts have been made to describe the ways in which precedential law is applied. The authors of the conceptualisations predominantly referred to the models of analogical and inductive reasoning. Henry Bracton proposed both analogical reasoning in his concept of adjudicating a similibus ad similia and inductive reasoning in his method of reconstructing the principles of common law on the basis of judicial decisions. The importance of per analogiam reasoning in application of precedential rules was particularly emphasized in jurisprudence of the 17th century – it was claimed that this model of reasoning would increase the predictability of court decisions but cannot by its very nature ensure absolute certainty. The inductive-deductive model, on the other hand, was preferred by thinkers who treated common law in terms of a collection of general rules of a nature similar to statutory law, most notably by legal positivists. At the same time, a number of authors claimed that defining precedent within any methodological framework will never have conclusive character. As far as the possibility of identifying the factual circumstances of the case is concerned, the factor of crucial significance is an analysis of the arguments included in judges’ opinions. Determining the level of generalization of factual circumstances which have legally relevant character poses the greatest difficulty. The last of the dimensions of the doctrine of stare decisis, which are of significance from the perspective of predictability of court decisions, is the matter of stability of the precedential law. Traditionally, both distinguishing and overruling have been considered to have negative impact on the predictability of court decisions. Direct overruling of a precedent has been subject to far-reaching limitations, of which the most important was the declaration of the English House of Lords on the adoption of the binding rule of precedent in the horizontal dimension. Still, distinguishing, which involves discernment between all legally relevant and irrelevant factual circumstances of the analyzed case and of the precedential case, is often pointed to as a method which decreases the level of predictability of court decisions to an even greater extent than overruling. It is emphasized that – since revoking a precedential rule or limiting the scope of its application does not occur explicitly – doubts may arise which rules have binding character and what is its scope. Moreover, the method by its very nature leads to the increase of the level of complexity of the precedential law.