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43 Law & Phil. 1 (2024)

handle is hein.journals/lwphil43 and id is 1 raw text is: Law and Philosophy (2024) 43: 1-30 © The Author(s). This article is an open access publication 2023, corrected publication 2023 https://doi.org/10.1007/s10982-023-09476-y SEBASTIAN LEWIS STARE DECISIS AND EQUITABLE POWER (Accepted 24 February 2023) ABSTRACT. One of the main moral costs of stare decisis lies in the continuous possibility of entrenching morally deficient decisions in the law. Although legal systems usually make provision for dealing with morally deficient precedents, there are cases in which the legal obligation of later courts to follow one of these precedents is undefeated. This possibility affects the overall justification of stare decisis. One traditional answer to this problem consists in accepting this moral cost, on the belief that the benefits of stare decisis outweigh it. On this view, when there is an undefeated legal obligation to follow a morally deficient precedent, the court must simply follow precedent. In this article, I question this approach and defend an alternative solution. I argue that, under some conditions, a court facing a morally deficient precedent should have the power to either follow the precedent or suspend its application to the parties by ordering a temporary stay of pro- ceedings and referring the case to a higher court with power to overrule the precedent. This proposal entails exercising an equitable power recognised by the legal system, which I defend against three possible objections. I. INTRODUCTION It is often said that one of the main differences between adjudication in the common law and civilian jurisdictions comes down to the duty of courts in regard to precedent. On the received view, civilian courts are not legally required to follow precedent whereas com- mon-law courts do have this obligation. But, as some scholars have noted,' this view is mistaken, for the sole reason that many civilian courts are legally required to follow precedent whereas the reverse is ' Cf Neil MacCormick & Robert Summers, 'Introduction', in N. MacCormick & R.S. Summers (eds), Interpreting Precedents (London/New York: Routledge, 2016): pp. 2-3, 12; John H. Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition, 4th ed. (Stanford: Stanford University Press, 2019): p. 47; and FAbio Perin Shecaira, 'Precedent and the Source-Norm Distinction', in T. Endicott, H. Kristjinsson, & S. Lewis (eds), Philosophical Foundations of Precedent (Oxford: Oxford University Press, 2023).