Katja Funken "The Trend Towards Converge S804151001 LA732 Comparative Legal Ess a) horizontal Stare Decisis Let us first turn to the aspect of horizontal stare decisis, 1. e. that a court is generally bound by its own decisions. Unlike their Common Law counterparts, the supreme courts in Civil Law countries were never to be formally bound by their own precedents However this difference lost much of its distinctive character when the british house of lords announced in 1966 that it would abandon the doctrine of strict stare decisis.2 The US Supreme Court had distanced itself from the doctrine even earlier Furthermore, most Civil Law courts-at least the ones in Europe -will, in practice, not easily overrule their former case law.This is due to the fact that they do not wish to undermine their authority by correcting their own decisions A comparative German-American study, for instance, found that, in the almost 50- year history of the German Federal Constitutional Court(Bundesverfassungsgericht) in which it published around 4000 decisions, it departed from precedents in fewer than dozen cases. This consistency is all the more remarkable in light of the fact that 78 different judges sat on the court during this period b) Vertical Stare Decisis See Dawson's Settlement, Lloyds Bank, Ltd v. Dawson and Others(1966)1 W.L.R. 1234 28 See for example, Erie Railroad Company v. Tompkins, (1938)304 U.S. 64, which overruled Swift Tyson,(1842)16Pet.1,10L.ed.865 See Hoyer H, 'Die Selbstbindung des osterreichischen Obersten Gerichtshofes', (1974)29 Osterreichische Juristenzeitung 141 Lundmark T, Stare decisis in der Rechtssprechung des Bundesverfassungsgerichts, (1999) 3Id. at p.78 Id. at D. 78
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 11 a) Horizontal Stare Decisis Let us first turn to the aspect of horizontal stare decisis, i. e. that a court is generally bound by its own decisions. Unlike their Common Law counterparts, the supreme courts in Civil Law countries were never to be formally bound by their own precedents. However, this difference lost much of its distinctive character when the British House of Lords announced in 1966 that it would abandon the doctrine of strict stare decisis.27 The US Supreme Court had distanced itself from the doctrine even earlier.28 Furthermore, most Civil Law courts - at least the ones in Europe - will, in practice, not easily overrule their former case law.29 This is due to the fact that they do not wish to undermine their authority by correcting their own decisions. A comparative German-American study30, for instance, found that, in the almost 50- year history of the German Federal Constitutional Court (Bundesverfassungsgericht), in which it published around 4000 decisions, it departed from precedents in fewer than a dozen cases.31 This consistency is all the more remarkable in light of the fact that 78 different judges sat on the court during this period. 32 b) Vertical Stare Decisis 27 See Dawson's Settlement, Lloyds Bank, Ltd. v. Dawson and Others (1966) 1 W.L.R. 1234. 28 See for example, Erie Railroad Company v. Tompkins, (1938) 304 U.S. 64, which overruled Swift v. Tyson, (1842) 16 Pet. 1, 10 L. ed. 865. 29 See Hoyer H, ‘Die Selbstbindung des österreichischen Obersten Gerichtshofes’, (1974) 29 Österreichische Juristenzeitung 141. 30 Lundmark T,' Stare decisis in der Rechtssprechung des Bundesverfassungsgerichts', (1999) Rechtstheorie at 78. 31 Id. at p. 78. 32 Id. at p. 78
Katja Funken "The Trend Towards Convergence S804151001 LA732 Comparative Legal Essay As to the concept of vertical stare decisis, that is, the decisions of higher courts are considered binding on lower courts, there are some more similarities between Civil aw and Common law countries Spain and germany, for example, enacted statutory provisions in the last decades that make some decisions of their constitutional courts expressly binding on courts and governmental institutions. In regard to Spain, Article 5.1 of the Organic Statute of the Judicial power states that"the Constitution is the supreme norm of the legal system and is binding for all judges and courts, who shall interpret and apply laws and administrative norms according to constitutional precedents and principles, in accordance with the interpretation of them resulting from the decisions handed down by the Constitutional Court. "34 According to section 31(1)of the German Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz or BVerfGG), decisions of that court are binding on the federal constitutional institutions, on the states and on all courts and agencies. "While there is no comparable statutory provision fortifying the binding quality of the decisions of other highest courts of appeal in Germany, such as the Federal Supreme Court(Bundesgerichtshof) and the Federal Administrative Court (Verwaltungsgericht), there is a great practical uniformity due to the availability of ppellate review and reversal Concerning the situation in france, David and de vries have stated that despite the absence of a formal doctrine of stare decisis there is a strong tendency on the part of the French courts like those of other countries, to follow precedents, especially those of higher courts /.] The attitude of lower courts towards the Lundmark T,Umgang mit dem Praejudizienrecht', (1999)3 DAJV-Newsletter 34 See Miguel AR, Laporta FJ, Precedent in Spain, in: Interpreting Precedents, supra note 26 at 275
Katja Funken “The Trend Towards Convergence” S 804151001 LA732 Comparative Legal Essay 12 As to the concept of vertical stare decisis, that is, the decisions of higher courts are considered binding on lower courts, there are some more similarities between Civil Law and Common Law countries. Spain and Germany, for example, enacted statutory provisions in the last decades that make some decisions of their constitutional courts expressly binding on courts and governmental institutions.33 In regard to Spain, Article 5.1 of the Organic Statute of the Judicial power states that "the Constitution is the supreme norm of the legal system and is binding for all judges and courts, who shall interpret and apply laws and administrative norms according to constitutional precedents and principles, in accordance with the interpretation of them resulting from the decisions handed down by the Constitutional Court."34 According to section 31(1) of the German Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz or BVerfGG), decisions of that court are binding "on the federal constitutional institutions, on the states and on all courts and agencies." While there is no comparable statutory provision fortifying the binding quality of the decisions of other highest courts of appeal in Germany, such as the Federal Supreme Court (Bundesgerichtshof) and the Federal Administrative Court (Verwaltungsgericht), there is a great practical uniformity due to the availability of appellate review and reversal. Concerning the situation in France, David and de Vries have stated that “…despite the absence of a formal doctrine of stare decisis there is a strong tendency on the part of the French courts like those of other countries, to follow precedents, especially those of higher courts […] The attitude of lower courts towards the 33 Lundmark T, 'Umgang mit dem Praejudizienrecht', (1999) 3 DAJV-Newsletter 34. 34 See Miguel AR, Laporta FJ, 'Precedent in Spain', in: Interpreting Precedents, supra note 26 at 275