Why are courts often reluctant to depart from precedent?

Every litigation, when it comes on to the court, has some rules and precedents to be considered by the Hon judges and law professionals.

By Dr Sakul Kundra

Fiji Times’s cover story ‘Gone With the Wind’ (18/8/2022), follow up story ‘Lawyer abdicated roles’ (19/8/2022) of a legal battle is making headlines. This case is about a “lawyer [who] failed to appear in court on Monday where he was sentenced to 10 months imprisonment by the High Court in Suva for contempt of court” (FT, 18/8/2022). Both parties have reputed lawyers, who may take the best legal options during the trial and after judgement.

Every litigation, when it comes on to the court, has some rules and precedents to be considered by the Hon judges and law professionals. Thus the theory of precedent is of huge importance in the eyes of law. 

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If a system of law lacks stability, then it would create a huge concern for many. This would create uncertainty in achieving the best possible legal advice, and giving the freedom to apply any judgement without binding on the earlier judgements made by higher courts would lead to losing the similarity to justice and fairness, and the impartiality of the Court could not be maintained (Catlett, 1946).

This op-ed enlightens a debatable concept in law, i.e. Stare Decisis, its benefit, limitations, and critics to comprehend the concept based on available sources. It is highly relevant in Pacific Island nations that have borrowed laws from imperial, colonial, customary, and post-colonial laws.

Court (Image: Wikimedia commons)

What is Stare Decisis?

Stare Decisis is a Latin word meaning “To let the decision stand and not to disturb settled matters” or “to maintain former adjudications” or “to uphold precedents” in the law that is a binding Case Law.

The simple meaning is that the case at hand is to be decided in accordance with the decisions of similar cases in the past with similar facts and similar legal issues.

The decisions taken by the competent court “will no longer be considered open to examination, or to a new ruling, by the same tribunal or those which are bound to follow its adjudications” and “the judges are bound to follow that decision so long as it stands unreversed unless it can be shown that the law was misunderstood or misapplied in that particular case” (The American Law Register, December 1886).

This was the authority in a similar case. The preceding decisions should have binding authority; otherwise, the previous decisions will merely have persuasive value. The past decisions are identified as precedents.

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In the colonies, this idea was employed as the foundation for their judicial judgements, which originated in England. The doctrine of Precedent guarantees that law is certain, consistent, and clear. This gives stability, predictability, adaptability, uniformity, and integrity to the rule of law.

This applies when higher court judgement/decisions with similar facts and legal issues have a binding effect on the subordinate courts. Thus, many cases of law in lower courts will be decided based on precedent.

Similarly, judges are bound by the precedent that comes from the higher court above their court. It is useful, as every case is no longer susceptible to endless re-examination thanks to this doctrine. Judiciary trust increases when legal standards are regularly implemented and judged by an objective, non-personal and logical process.

Stare Decisis is important to know what the law says as it curtails the practice of the court to decide freely on its own merit, irrespective of similar cases that have the judgement in the past. It saves time in making decisions as well as eliminated ambiguity in making decisions for the lower court to follow the decision taken by the higher court. It also establishes uniformity in decision-making.

All judges in a jurisdiction must apply the ‘rule of law’ until it is overturned by a superior court. These legal rules assist the public in understanding the ramifications of their actions, which makes it easier for them to make informed decisions. The persuasiveness of precedent primarily dependent on the

The doctrine works in both horizontal and vertical manner, the horizontal Stare decisis means the court is referring to its precedent, whereas vertical stare decisis is applying the precedent from the judgements made in the higher court.

However, another scholar stated that Courts have consistently emphasised that Stare decisis is a flexible “principle of policy” as opposed to “inexorable command” (ct. Kozel, 2010). The scholar emphasised the reasons for overruling the precedent based on questions of logical and consequential considerations (soundness and practical workability); Temporal and Doctrinal Considerations ( evolving understandings, antiquity, Remnant and Anachronisms; Unclean hands; Synchronization); Technical consideration (Nature of Decision rule and voting margin and dissents); Reliance Lite; and Rethinking Reliance (Kozel, 2010). 

Limitation and Critics

According to The American Law Register, December 1886, the principle of Stare decisis is the:

  • Overruled cases [where the decisions are overruled by the same court that gave the judgement or the court exercising appellate jurisdiction, that cannot be cited as a precedent]; 
  • Decision manifestly Erroneous [the incorrect decisions of the past will not be able to be corrected and the duty lies with the court to correct the mistakes done in the past as some past decision has become obsolete due to change in the circumstance and space]; 
  • Isolated cases [“single decision upon any given point of law is not regarded as conclusive as a precedent in the same degree that a series of decisions upon that point would be”];
  • Obiter Dicta; 
  • Illustration and Argument; and
  • Two extremes to be avoided.

Some criticize Stare Decisis for its effect of limiting the free development of law. The precedent has also been criticised for its rigidity and unwillingness to allow any change. Lastly, whatever mistake has been made in judicial decisions in the past continues to be used as a precedent law.

In the long run, courts are reluctant to depart from precedent, mainly if it has been considered authoritative law for a considerable period (Schubert, 2012). The weight of a precedent is also affected by the number of judgements issued on the same rule of law. As per general scholar views, courts need to overturn precedents when they are no longer relevant because of changing economic, political, and social situations to benefit society.


The ongoing high-profile legal case in Fiji will be judged based on the best legal judgement if it is challenged in appellate court. Every doctrine has benefits and limitations, but the best practice is to adopt the precedent to establish the uniformity of adjudication.

However, I do believe in the sociological theory of law which may have a different perspective compared to the positive and natural theory of jurisprudence. As a social scientist, I think that society’s expectations and requirements should be the principle to make changes in obsolete and erroneous precedents. 

Contributing Author: Dr Sakul Kundra is an Associate Dean (Research) and Assistant Professor at the College of Humanities and Education, at Fiji National University. The views expressed are his own and not of his employer. Email dr.sakulkundra@gmail.com

Dr Sakul Kundra (Image: supplied)

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