Professional Documents
Culture Documents
1. Introduction
One of the common rationales put forward for legal systems to contain a rule
of precedent (though not necessarily a strict one) is the formal justice
principle that like cases must be treated alike, which in the sphere of legal
adjudication is usually specified in the traditional principle of equality
before the law. Just as traditional, however, but still not clearly settled, is the
dispute about the nature of that principle. For some scholars, such as Kelsen,
Lyons or Western, the principle that like cases must be treated alike is no
more than a purely formal criterion, which could be filled with any content
whatever, but in respect of the adjudication of rules it is at best a redundant
and useless criterion and at worst a disturbing principle. For others, however, such as Dworkin or MacCormick, such a principle is an ultimate moral
foundation of the commitment of State and judges in applying the law,
taking account of past history of the application of law in like cases. I shall
review this controversy and conclude that the principle of equality before
* Earlier drafts of this paper were read by Juan-Carlos Bayn, Neil MacCormick, Liborio Hierro,
Francisco J. Laporta and Pablo de Lora, to whom I am very grateful for their useful comments.
I am also indebted to the Spanish DGICYT, which supported my research stay in the Centre for
Criminology and the Social and Philosophical Study of Law, University of Edinburgh, as well
as to the latter and its Director, Zenon Bankowski, for all the facilities given to me there.
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the law has a relevant content in the application of the law, justifying the
existence of a relatively strong rule of precedent which lies half-way between
a strict doctrine of indefeasibly binding precedent and a relaxed doctrine of
precedent subject to exception for any reason whatsoever.
2. Equality before the Law: The Insignificance Thesis
The author who has argued most clearly and convincingly against any
significance of the principle of equality before the law is Hans Kelsen:
And now what of the special principle of so-called equality before the law? All it
means is that the machinery of the law should make no distinctions which are not
already made by the law to be applied. If the law grants political rights to men only,
not women, to citizens only, not aliens, to members of a given race or religion only,
not to members of other religions or races, then the principle of equality before the
law is fully upheld if in concrete cases the judicial authorities decide that a woman,
an alien, or the member or some particular religion or race, has no political rights.
This principle has scarcely anything to do with equality any longer. It merely states
that the law should be applied as is meant to be applied. It is the principle of legality
or legitimacy which is by nature inherent in every legal order, regardless of whether
this order is just or unjust. (Kelsen 1973, 15)
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Sadurski 1985, 789).1 I shall call this subthesis equality before the law as
generality of rules.
So far, the principle of equality before the law has been taken to mean
nothing more than abstract applicability of a rule on its own terms. However, from the idea of concrete applicability, or actual application, Kelsens
second subthesis follows: that the principle of equal application of rules is
entirely superfluous. Thus, in the same way as it is superfluous to assert that
applicable rules must be applied (since if applicable means which must
be applied we are only told that rules which must be applied must be
applied), so, asserting that rules must be applied to those cases to which they
refer if, as proper rules, they command obedience, is superfluous, plainly
redundant, and empty (cf., in this development, Westen 1981). In this sense,
equality before the law would be nothing but a superfluous repetition of
the principle of legality, and so I shall call this second subthesis equality before
the law as legality.
The third and last subthesis derivable from Kelsens text is that equality
before the law does not entail or bring about any requirement of justice
whatsoever, since a judges respect for that equality is perfectly compatible
with the most unjust inequality in the law. So, says Kelsen, when a law
allows men the right to vote while refusing it to women, a judge can treat
different classes of people differently without violating the principle of
equality before the law (cf. Kelsen 1966, 90). I shall call this part of Kelsens
thesis equality before the law as injustice.
These three subtheses have a different nature. The first two are only
different versions of a kind of reason aimed at denying conceptual relevance
to the principle of equality before the law. The first one insists on the fact that
the existence of rules, even as mere declaratory statements, establishes some
kind of equality, namely equality as generality of rules, and the second one
remarks that it is the fact of application of existing rules that brings about
equality as mere legality. In either case, the principle of equality before the
law would as a result be conceptually superfluous. The third subthesis however, is not conceptual but ethical in nature, and claims that equality before
the law lacks true moral weight, thus being ethically irrelevant. I shall discuss
both aspects to argue that this principle is both conceptually distinctive and
ethically relevant.
1
I have to point out that Sadurski is quite ambiguous in his formulations. On the one hand, he
says, according to the second subthesis I shall comment on straightaway in the text, that
[e]qual treatment of equal persons is therefore nothing else but the correct application of a
general rule (Sadurski 1985, 789; my italics); but, on the other hand, he states that [t]he
principle of equal treatment of equal persons is a necessary consequence of the general nature
of any rule which calls for certain treatment [] The very essence of a rule is that it brings
specific situations under a general scheme; hence all equal persons [] must be treated in the
same way. [] Those persons are, therefore, treated by this rule as equals in a certain respect
(ibid., 78; my italics). As we shall see below, this latter formulation is quite a different sense of
the thesis.
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Isaiah Berlin precisely pinpointed this feature of general rules when, acknowledging the
possibility of rules being unequal by classifying people in certain ways, asserted that, as a
matter of fact, some minimum degree of prevalence of rules is a necessary condition for the
existence of human societies and that the kind of equality with which obedience to rules is
virtually identical is among the deepest needs and convictions of mankind (Berlin 1978, 85).
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Apart from that, if Kelsens thesis were acceptable it would most probably
prove much more than he claimed, since he distinguished between equality
before the law (or as to application of the rules) and equality in the law (or
as to rules themselves) as quite different concepts.4 Since in the Kelsenian
theory any rule, either legal or moral, obtains its validity from the declaration
of a higher ruleexcepting, of course, the rule that provides the first criterion of validity, it follows that his criticism of the principle of equality
before the law would also affect the principle of equality in the law. This is so
because the latter, by saying that all irrelevant or arbitrary distinctions must
be excluded, is nothing but a higher rule (either legal or moral), the nonapplication of which would be no more than a single violation of legality, i.e.,
of the validity chain between rules that would make any other reference to
equality superfluous. I do not assert that this approach cannot be pursued
in fact it has been taken to extreme lengths by Westen (1981, 1990), whose
argument cannot be discussed herebut only that it goes much further than
Kelsen presumably believed.
3.3. Equality as Legality: On Normative Irrelevance
Even accepting the previous arguments, one could replyalthough this is
not what Kelsen actually saidthat the normative duty to apply the law
equally is superfluous not because it is a requirement already set by logic
which adds nothing, but because it adds nothing to the normative duty to
apply the law. Yet this line of argumentation is not convincing either.
First of all, the notion of application of law is not strictly tantamount to the
notion of equal application of law, because the first time a rule is applied
there is no more than one term, and all equality relations demand at least
two terms to establish the comparison (cf. Lyons 1993a, 309). To put it another way, the court establishing the original precedent in a matter cannot by
hypothesis account for any former precedent, and in that case it cannot violate
the principle of equality before the law, although it can violate the principle
of legality, i.e., that of correct application of the law.
But a more pervasive point is that even if in most cases the fact of accomplishing the duty to apply the law coincides with (or even is strictly the
same as) that of accomplishing the duty to apply the law equally, this does
not mean that it is exactly the same duty. In general, it is by no means unimaginable nor inadmissible that by conforming to a legal rule someone
might conform to other, different rules at the same time. Conversely, it is
perfectly imaginable and prima facie admissible that disobeying a rule by an
action sometimes entails also disregarding other rules. This is a normative
4
So when Kelsen states: It can be equality before the law even if there is by no means equality
in the law. If the law allows the vote only to men and not to women, if, therefore, there is from
this point of view no equality in the law, the principle of equality before the law could nevertheless be honored (Kelsen 1966, 90).
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an equal application of the law, in the sense of a positive application of the rule
in all cases to which it refers, rather than for equality in the application of
the law, in the sense of equality in the treatment given to the addressees
of the rule in its process of application, a process that includes the different
interpretations of its applications and even its possible non-applications.
From a conceptual point of view (as distinct from the normative or evaluative one) if we interpret the principle of equality before the law as (positive)
equal application of the law in every case, then the thesis that such a principle collapses into the principle of legality as correct application of the law
becomes a trivial and entirely uninteresting tautology. However, this thesis
is also unsatisfactory because it makes the potential conflict between the two
principles either irrelevant or inexplicable. Since that conflict is an exposition
of different values, it is genuine and important.
As previously suggested, it is quite a different matter whether or not, from
a normative point of view, a given legal system (or a given moral conception)
must adopt a clear and uniform solution for that kind of conflict, either by
giving priority to the principle of legality over that of equality before the law
or vice versa. I shall return later in more detail to this point, but for now it
suffices to note that, as a clear case, it seems defensible to prefer the principle
of equality before the law to that of legality when the non-application of the
rule is widespread and has been consolidated (so, this reasoning would
allow a court to dismiss the application of a rule without accepting the always precarious argument of desuetudo, which would assume a much too
general commitment and would be presumably less clearly sound). Anyway,
the more relevant point here is that from a conceptual point of view there is
nothing absurd in asking for equality in illegality, which is sufficient to show
that the principle of equality in the application of the law does not collapse
into the principle of legality.
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to do, that equality before the law lacks any ethical value whatsoever. Kelsen
is right in pointing out that if a legal rule is unjust, its legally correct applications will be so too. However, this fact does not mean that equality
before the law lacks all moral weight. It only allows us to conclude that such
a principle, as well as the principle of legality and many other legal principles, is not an absolute and conclusive criterion, but only an overridable
one. And it means therefore that when the rules are just and, perhaps, even
when they are not plainly or seriously unjust, the principle of equality before
the law deserves considerable, though not absolute, respect.
Equality before the law has a role as an ethically sound legal principle
when it functions in a framework that reasonably assures equality in the law,
allowing exclusion, through judicial review, of the validity of rules that do
not respect the basic requirements of equal justice in their classifications,
imposing, for example, discriminations based on race, gender or the like. In
this aspect, equality before the law is a second barrier criterion, but it has to
be remarked that the first barrier, for judging the ethical quality of the rules
themselves, does not only include equality in the law but also respect for
other basic ethical principles, such as, particularly, basic human rights. So,
for instance, punishment for a crime of blasphemy against the Christian
religion can be unjust because the rule that imposes it should be repealed (by
parliament or by courts, depending on the kind of legal system) not so much
for reasons of inequality in respect of non-punishment of blasphemy against
other religionsa fault that could be resolved by widening the rule, but
for reasons of unfairness towards freedom of expression that seem to require
blasphemy not to be treated as a crime.
But now, one could reply that when the rule is unjust or unfair, the principle of equality before the law is insufficient because it does not serve to
stop injustice, and when the rule is just the principle is unnecessary since
then it will suffice to apply the rule correctly (not equally): In either case,
then, equality before the law would be ethically irrelevant. This is much too
crude an alternative, presumably based on clear-cut cases, which does not
grasp the complexity of the application of rules in legal systems. The clear
cases are two in number: Firstly, the application of rules which seriously
discriminate against some people or which are for other reasons plainly unjust (for instance, the rule that excludes nationals of a given race or religion
from the right to vote or the rule that forbids freedom of political expression);
and, secondly, the application of rules which have always been straightforwardly and one-dimensionally interpreted (for instance, the rule that
applies a heavier penalty for an aggravated crime).
In both those kinds of cases equality before the law seems indeed to
add nothing. But that is only an appearance due to the fact that the two
are extreme types of cases standing in a line which also includes other
intermediate and more interesting types. Actually, in cases of the first type,
it is not the equal application of the unjust rule that adds more injustice to the
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existence of the unjust rule, but its mere application. Even more, although in
perverse legal systems it will be preferable for the most part not to apply the
unjust rules, it cannot be excluded that applying some of the less harmful
ones equally could serve to limit the otherwise pervasive capricious arbitrariness of the legal system, which could be a greater evil. So, it would be
preposterous to say that a judge is morally required for the sake of equality
before the law to apply capital punishment which an efficacious rule sets for
politically disobedient Jews, if he or she has the opportunity to avoid it in
one case; but it is arguably reasonable for a judge to take account of the
principle of equality before the law and to deny the acquittal of the son of a
rich and powerful man for having violated the same dictatorial states rule
prohibiting nakedness on the beach when that is the rule usually applied. All
that it means is that even in unjust legal systems the principle of equality
before the law continues to bear some weight, though generally it will in
comparison be so low in regard to the material injustice of the rule and of its
application that it will usually in the end be scarcely considerable.
Whereas equality before the law bears some weight it is more clearly
perceptible when we consider rules which are only slightly unjust. Suppose
that I go to a government office to ask for an official certificate and learn that
the rule there is that they will receive my application today and deliver the
certificate tomorrow; while I am filling in my application I can see officials
reading newspapers and chatting; I also see another man presenting his
application with great familiarity to the official and note that he is told to
wait only a few minutes, after which he is given his certificate. Can I not justly
complain that this is an unfair inequality in the application of an otherwise
slightly unjustified rule? Of course, as simple equality can always be got in
two ways (obeying and not obeying the rule in every case) and as the rule at
hand is rather irksome but not very onerous, I would want to be treated in
the same way as the privileged man. But the relevant point is that there
is also some justiceand presumably, if the rule is generally applied when
no other special reasons exist (such as extreme urgency or the like), more
justicein complaining against the privilege, asking that the privileged
man be treated like everyone else, despite the possible injustice of the rule
itself. This would be impossible, I think, if equality before the law lacked any
moral weight and were ethically irrelevant.
At the other extreme, equality before the law also bears some weight in
cases of just rules which have usually been applied in a plain and simple
way, although that principle can seem almost irrelevant because of the somewhat mechanical application of the rules. But if it bears some weight in
cases which are less clear, it must also do so in these cases. This can be seen
in the following example, reflecting a typical situation admitting different
possibilities all of which are acceptable and require a rule of co-ordination,
as, for instance, cars driving on the right or on the left. Suppose a statutory
rule that states that valuations of property for a local council tax will last two
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years, and that half of the houses will be reassessed each year; then suppose
some local authorities split their cities by streets, some beginning with odd
numbers and others with even numbers, and other authorities split theirs
by the names of the tax-payers, some beginning with a and others with
the first letter drawn by lot; now suppose that, when implementation of the
rule is still in its inception, a complaint against the vagueness of the statutory
rule reaches the Supreme Court, which in a reported judgement decides that
the proper way of splitting properties for tax assessment is by a local draw;
a week later, suppose further that another sitting of the Supreme Court
hears a similar case and decides that the proper way is by a national draw.
Cannot a complaint be made for reasons of equality that the second judgement has not taken sufficient account of the previous judgement (i.e., of the
precedent)? Of course, this will be a complaint made much more willingly
by people who could benefit from the former interpretation, but even if
that is the case, the important point seems to be that everyone must acknowledge that where there are no significant reasons for changing the interpretation of the rule already made, equality before the law remains a relevant
reason (although presumably not the only one, as we shall see) to hold to the
precedent.5
Finally, a third kind of intermediate situation in which the weight of equality before the law is clearer is the reverse of the foregoing example. Suppose
that in the office where I apply for a certificate I am told, instead, that even
if the legal rule requires certificates to be delivered a day later, they are usually
produced within five minutes; while I am filling in my application I can see
another man presenting his application and arguing fiercely with the official,
who finally tells the man to come back next day to get his certificate. Is that
not unjust and arbitrary official conduct because of its contempt towards the
principle of equality before the law? Can it not be said that such unjust
inequality is a worse result than continuing not to apply the rule and, in that
particular case, the principle of legality?
Therefore, equality before the law seems to bear some weight in every
case, although that could be more visible and specially relevant in intermediate cases such as the last three I have exemplified. However, in the first
of them the foregoing picture does not properly reflect the actual functioning
of legal decision-making processes, since committed interpreters, as judges
5
Lyons (1984, 585) justifies cases of this kind, considering the original decision as a commitment, made to others, that future decisions in similar cases shall be made similarly. We need
not exclude the possible additional relevance of this kind of reasoning to maintain the relevance
of equality before the law as a different and independent reason, since even if the legal system
excludes the commitment that courts will follow precedents, there being no such social expectancy, not to follow a precedent such as that of the example in the text still seems to be wrong
for reasons of equality (in the example, moreover, I have introduced the feature that the second
judgement is given only a week after the first in order to exclude, or at least to minimise, the
relevance of the reliance argument, which is another consequence of Lyons reasoning, insofar
as people adopt different courses of action relying on the expected conduct of authorities).
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usually are, do not ask straightaway about the justice of rules, but about
their legal correctness (the answer to which, naturally, can be required more
or less openly to refer to criteria of justice but, as criteria embodied in the
legal system, never directly). So, hereafter it will be convenient to point out
the justification of following legally incorrect precedents rather than simply
unjust ones.
In the functioning of a legal system, then, it can be useful to differentiate
four kinds of application of rules when precedents are in point. At the two
extremes, the case of a clear legally incorrect application of the rules by the
previous decision (or decisions) and the opposite case of a clearly correct and
indisputable application, where equality before the law plainly seems not to
be a sufficient (in the first case) or a necessary (in the second one) reason for
relying on precedent. In between lie the case of a slight or not serious legal
defect in the previous decision and the case of a previous application of a
rule which, at the time, admitted different interpretations because it did not
make much difference until one of them was settled. In the remainder of the
paper, I will consider the weight of the principle of equality before the law
in regard to these last two kinds of precedent.
4.2. The Weight of Equality before the Law and the Rule of Precedent
If the principle of equality before the law always has some weight which has
to be pondered in the application of the law, the rule (or system or doctrine)
of precedent should have some weight in any legal system. How much
weight? Authors who have asserted the relevance of that principle, such as
Dworkin and MacCormick, agree, for good reasons, that its weight as a rule
for following precedent cannot be absolute, but although both start off from
quite similar (though, as we shall see, not identical) assumptions in this
matter, they seem to arrive at quite different conclusions about the extent of
that weight.
Ronald Dworkin quite clearly excludes the justification of a strict doctrine
of precedent in his legal theory of integrity, which is simply another name
for the principle that we must treat like cases alike, meaning for him not only
that the past must be allowed some special power of its own in court
(Dworkin 1986, 16567), but also that present practice can be organised by
and justified in principles sufficiently attractive to provide an honorable
future (ibid., 22728). Besides, Dworkins view that judges act and have to
act by constructing the best interpretation of the legal system, being quite
indeterminate as to the concrete weight of equality before the law in following precedents, seems to suggest that its weight is minimal when the previous
case gives an unjust or unsatisfactory answer in the light of the abstract
principles of fairness and justice that in his theory the legal system (i.e.,
in fact, all western legal systems) is assumed to honour (cf. ibid., 185, 245,
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255).6 If this conclusion holds, the rule of precedent, so justified for reasons
of equality before the law, tells not only in favour of a non-binding rule of
precedent but also for an outweighable rule of precedent, according to which
precedents can be disregarded or overruled for simple countervailing reasons.7
MacCormicks view seems more exigent. He regards the principle of formal
justice, of treating like cases alike, as a principle that is backward- as well as
forward-looking, and even more the latter, as its forward-looking aspect is
what governs the duty to decide todays case in a way one would stick to for
the future (MacCormick 1987, 161, n. 2; see also MacCormick 1994, 735). It
is this double aspect of the principle of formal justice as understood by
MacCormick that explains his rejection of the strict doctrine of precedent
that requires all precedents to be binding (cf. MacCormick 1987, 158, 1712,
182). However, presumably because MacCormick does not take so strong a
view as Dworkin about the commitment of the legal system to powerful and
stringent moral principles, he gives clear and important weight to precedents, asserting a rather strong presumption in their favor and requiring
not simply countervailing reasons but, it seems, more exceptional reasons.8
That yields a not strictly binding but defeasible rule of precedent, which
requires that precedents must be applied unless exceptions come into play.9
Before analysing these two views more closely, let me introduce some
distinctions useful for understanding them better and discussing them further. In speaking about the rule or doctrine of precedent we can be referring,
6
This rough description does not attempt to do justice to the complexity of Dworkins theory,
where it is not clearly determined when one must (or can) appeal to principles and when one
must follow a precedent, even if there is a considerable record of American Supreme Court
precedents that Dworkin considers both unjust and unconstitutional, such as Dred Scott, Lochner,
Plessy or Korematsu (cf. Dworkin 1986, 37476). Indeed, his defence of the solution that better fits
both past institutional legal history and principles of political morality sustained by the
community is ambiguous and, like the Rawlsian criterion of reflective equilibrium, can probably
bring about more than one single solution. Therefore, we cannot exclude the possibility that
Dworkins theory gives more weight to precedent than I suggest in my interpretation (see a different interpretation, referring to The Model of Rules I rather than to Dworkins subsequent
writings, in Perry 1987, 22325, 25455). In fact, when Dworkin applies his theory to the legal
dispute over abortion, he accepts that a precedent as important as Roe v. Wade should not be
overruled, after over twenty years, unless it was clearly wrong (Dworkin 1993, 171) and so, he
seems to accept at least one of the two kinds of cases I have pointed out as typical of precedential
force. However, since such a conclusion fits in with Dworkins interpretation considered best on
that particular matter, his criterion may not be sufficiently distinctive. Anyway, we can take the
interpretation stated in the text as a plausible one, useful for argumentative purposes.
7
I am following here, though only in part, the terminology elaborated for the Bielefelder
Kreis in a questionnaire about a Comparative Legal Precedent Study discussed in meetings
held in Bologna and Florence on June 1994 with a view to a book on the subject that continues
the research line of MacCormick and Summers 1991 (see MacCormick and Summers 1997, 55455).
8
MacCormick (1987, 167) states: Even where precedents are held to be persuasive rather than
absolutely binding, there must be a rather strong presumption against departing from what has
already been decided. It would require to be shown that some new departure would cohere
better with the main line of legal development, as well as being fairer or preferable in its consequences than the relevant precedent(s), before there would be sufficient reason for not standing
by decisions.
9
See supra footnote 7.
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on the one hand, either to each particular court or to the judicial system as a
whole, and, on the other hand, to respect or consideration towards precedents either of higheror only the highestcourts (vertical precedent) or
courts of the same levelor only the same court(horizontal precedent).
These distinctions, added to the prior one regarding the degree of weight of
the rule of precedent, can combine in multiple systems of precedent, but a
few comments can suffice in this context. The reasons of formal justice in
favor of a rule of precedent which is not strictly binding apply not so much
to each court or judge but rather to the judicial system as a whole, because
equality before the law gives relevancy to the relationship between citizens
and state, not between citizens and a particular court.10 If this is so, then the
establishment of a defeasible rule of precedent seems necessary only in
regard to the horizontal precedents of courts of final resort (usually, at least
in important matters, the highest court). So, it is not excludedand perhaps
may not be required either, provided that a satisfactory system of judicial
review and harmonisation existsthat the other courts be subjected to a rigid
stare decisis duty, i.e., to a strictly binding rule of vertical (and horizontal)
precedent (see Caminker 1994). In a similar way, the discussion of the relative
merits of a rule of outweighable and a rule of defeasible precedent is especially
pertinent with regard to the horizontal precedents of courts of final resort.
As is settled both for Dworkin and MacCormick, the principle of formal
justice seems to contain two aspects: one of a logical nature, pressing for
rationality as consistency among previous decisions, present decisions and
the rules and principles of the legal system, and the other of an ethical nature,
aiming at the equal treatment of like cases. But thus understood, in spite of
Dworkins or MacCormicks conclusions, neither aspect can justify more
than a simple duty of the court to consider or to take account of precedents,
it being perfectly justifiable to disregard them whenever the court deems it
preferable to do so, even for the slightest reason one can think of. This conclusion weakens the weight of the principle of equality before the law to the
minimum, probably a good deal more than is assumed in Dworkins theory
and, a fortiori, much more than in MacCormicksas here interpreted.
Where is the problem in this puzzle?
The main problem, in my view, lies in the ambiguity of the principle of
equality before the law as related with that of formal justice. In a first and
limited sense, as I had been interpreting it here until commenting on
Dworkins and MacCormicks theories, equality before the law is only
backward-looking and requires (though not absolutely) consistency between
the present decision and prior decisions, i.e., not only consideration but
also some weight for prior decisions. In a second and broader sense, as
10
Despite the centralist appearance of this statement, we need not assume that state law is a
centralised complex of rules any more than that all its rules refer to all citizens without exception;
rather, law can very well contain rules differentiating several classes of people, including those
related to local, regional or national communities.
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However, MacCormick (1994, 74) also uses alternatively the strict sense of the principle when
he asks whether it is better to perpetuate a substantive injustice as the price of satisfying formal
justice, where the opposition between them would not make sense if formal justice were
understood not only as respect for previous decisions but also requiring that I decide todays
case on grounds which I am willing to adopt for the decision of future similar cases (ibid., 75).
Illustrating the point made above in the text, this rationale is not consistent, I think, with the
thesis that formal justice requires that it shall not, save for strong reasons, decide this case in a
manner unlike the manner of its prior decisions in like cases (ibid.): If I am not wrong, this
conclusion is only educible from a strict sense of the principle of equality before the law, which
is the only one that sets the onus of justification upon the reasons not to follow the prior decision
(I come back to this further on in the text).
12
In such a strict sense, so-called persuasive precedent (when courts duty is only to consider
or take account of precedents without having to follow them) does not constitute a true rule of
precedent. Nevertheless, it has to be acknowledged that a legal system which contains a rule
of persuasive precedent gives some force, though minimal, to previous decisions, and is not
equivalent to a system that lacks even that rule. So, perhaps it would be useful to speak of two
senses, one strict or proper and the other broader or improper, of the idea of having a rule of
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ex hypothesis, this will not occur if a distinct and clearer or more preferable
solution arises at the time of the later decision). Secondly, when the former
solution is slightly incorrect, in the sense that it does not plainly violate the
then existing law, and in todays similar case the weight of that defect is not
as important as the principle of equality before the law, and also, it should
be added, of the other criteria working in favor of following precedents, such
as legal certainty, reliability and efficiency.
This second kind of case can seem somewhat doubtful and disputable for
two reasons. Firstly, because the line between the two different degrees of
incorrectness here considered cannot be exactly drawn. This argument,
however, which will be relevant in practice in the unavoidable grey area,
cannot count against the theoretical relevance of the criterion in clear cases.
Secondly, following precedent when the previous decision is incorrect, even
slightly, can be disputable because some people will consider that reasons
for generally following precedents are and should be counter-balanced and
even overruled by reasons against it, such as, on the one hand, the necessity
or, at least, the convenience of keeping a flexible connection between social
changes and legal rules through the judicial application of the law, and, on
the other hand, the overriding weight of the principle of legality compared
to the weight of equality before the law. Let us look at both more closely.
As for the flexibility argument, the argumentation developed here makes
it possible to give a better account of this kind of reason without presenting
it as a generic counter-balancing consideration against the rule of following
precedents in every case. Rather we must say more precisely that, if it is acceptable for judges to introduce changes in the rules when social circumstances have changed (in fact, some legal systems even accept it expressly in
their statutory rules on legal interpretation, although reasons could be presented against this sort of judicial carte blanche), these changes must be important enough to count as a reason why the criterion applied in the previous
case has now become seriously incorrect, not merely remaining as a slightly
incorrect one.
The plea for the principle of legality exhibits other problems. Considered
as a simple legal argument, such a plea will be self-defeating if the concrete
legal system contains, formally and/or by tradition, a rule of precedent which,
embodying or presupposing the relevance of the principle of equality before
the law, requires precedents to be followed at least when they do not establish seriously incorrect criteria. For, in such a case, it will be impossible to set
in opposition the principle of legality and that of equality before the law,
simply because not following a pertinent precedent would be contrary to
legality, i.e., to the law as a whole, which includes the principle of equality
before the law as relevant for the rule of precedent. On the contrary, in a legal
system which does not contain any proper rule of precedent, the prevailing
legal force of the principle of legality over that of equality before the law
will be almost self-evident. However, neither the former nor the latter case
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