equality before law and precedent

8/10/2019 Equality Before Law and Precedent

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Equality before the Lawand Precedent*

ALFONSO RUIZ MIGUEL

Abstract. The paper explores the nature of the principle of equality before the law,understood as the formal justice criterion that like cases must be treated alike, as arationale of the rule or system of precedent. The first part discusses and rejectsKelsens thesis on the conceptual insignificance of that principle in the sphere of theapplication of the law, identified uniquely with a logical criterion related to gen-erality of rules and simple legality. The second part argues for the ethical relevanceof equality before the law as a reason for a legal system to have a rule of defeasibly binding precedent.

1. Introduction

One of the common rationales put forward for legal systems to contain a ruleof precedent (though not necessarily a strict one) is the formal justiceprinciple that like cases must be treated alike, which in the sphere of legaladjudication is usually specified in the traditional principle of equality before the law. Just as traditional, however, but still not clearly settled, is thedispute 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 nomore than a purely formal criterion, which could be filled with any contentwhatever, but in respect of the adjudication of rules it is at best a redundantand useless criterion and at worst a disturbing principle. For others, how-ever, such as Dworkin or MacCormick, such a principle is an ultimate moralfoundation 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 shallreview this controversy and conclude that the principle of equality before

Ratio Juris. Vol. 10 No. 4 December 1997 (37291)

* 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.


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Equality before the Law and Precedent 373

the law has a relevant content in the application of the law, justifying theexistence of a relatively strong rule of precedent which lies half-way betweena 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 anysignificance 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 itmeans is that the machinery of the law should make no distinctions which are notalready 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 thelaw 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 statesthat the law should be applied as is meant to be applied. It is the principle of legalityor legitimacy which is by nature inherent in every legal order, regardless of whetherthis order is just or unjust. (Kelsen 1973, 15)

In order to fix Kelsens theses precisely, it is worth reminding ourselves thatfor him the principle of legality was in its nature simply logical, not ethical,and so fulfilment of legality is only correctness from a logical point of viewand has nothing to do with justice (Kelsen 1966, 91).

This seems to be a characteristic philosophical view which, althoughcontrary to common sense, attracts the mind and can seem indisputable because of the way it fits with the assumed concepts of the theory. Never-theless, some of these concepts have to be revised, and common sense canultimately win reassurance that there is some injustice when one personscase is decided differently from the like case of another person, without arelevant legal change between the dates of the respective decisions. To makethis point clear, Kelsens thesis can be separated into three different sub-theses, which have been clearly and distinctively endorsed either by Kelsenor by other authors.

The first states that equality before the law is no more than the logicallynecessary consequences of the existence of rules, understood as general andabstract criteria, i.e., as criteria which apply to a class of peoplefor a class of actions: The principle of equality before the law, then, would be nothing but

a logical consequence of the norms general character which commands thatsome given individuals must be treated in a given way in the given circum-stances (Kelsen 1966 85); or conversely the principle of equality before the


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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 meannothing more than abstract applicability of a rule on its own terms. How-ever, from the idea of concrete applicability, or actual application, Kelsenssecond subthesis follows: that the principle of equal application of rules isentirely superfluous. Thus, in the same way as it is superfluous to assert thatapplicable rules must be applied (since if applicable means which must be applied we are only told that rules which must be applied must beapplied), so, asserting that rules must be applied to those cases to which theyrefer if, as proper rules, they command obedience, is superfluous, plainlyredundant, and empty (cf., in this development, Westen 1981). In this sense,equality before the law would be nothing but a superfluous repetition ofthe principle of legality, and so I shall call this second subthesis equality beforethe 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 justicewhatsoever, since a judges respect for that equality is perfectly compatiblewith the most unjust inequality in the law. So, says Kelsen, when a lawallows men the right to vote while refusing it to women, a judge can treatdifferent classes of people differently without violating the principle of equality before the law (cf. Kelsen 1966, 90). I shall call this part of Kelsensthesis equality before the law as injustice.

These three subtheses have a different nature. The first two are onlydifferent versions of a kind of reason aimed at denying conceptual relevanceto the principle of equality before the law. The first one insists on the fact thatthe existence of rules, even as mere declaratory statements, establishes somekind of equality, namely equality as generality of rules, and the second oneremarks that it is the fact of application of existing rules that brings aboutequality as mere legality. In either case, the principle of equality before the

law would as a result be conceptually superfluous. The third subthesis how-ever, is not conceptual but ethical in nature, and claims that equality beforethe law lacks true moral weight, thus being ethically irrelevant. I shall discuss both aspects to argue that this principle is both conceptually distinctive andethically relevant.

374 Alfonso Ruiz Miguel

1 I have to point out that Sadurski is quite ambiguous in his formulations. On the one hand, hesays, 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 ageneral 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 natureof any rule which calls for certain treatment [] The very essence of a rule is that it bringsspecific situations under a general scheme; hence all equal persons [] must be treated in the


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3. On Conceptual Superfluity of Equality before the Law

3.1. Equality as Generality

The first thesis, that equality before the law as generality of rules is irrelevantas a demand for equality, is partially, and only partially, adequate, but it isnot at the core of the legal application problem. The argument that the bareexistence of general rules satisfies the demand for equality is an ancient argu-ment, already pointed out by Plato and Aristotle when they spoke in favorof the government of laws not men. This argument purported to supply anethical argument, benevolently aimed at avoiding arbitrariness of governmenttreating people capriciously without equal concern and respect, but it doesnot necessarily assure a just or fair equality. Since generality implies nothingmore than equal applicability to a class of people, as has been pointed out, itcan be not only compatible with racial and other discrimination but alsouseful for institutionalizing them (cf., for example, Raz 1979, 21516 and 219,and 1986, 221). Nevertheless, it must be conceded that the mere existence of rules, independently of their application, can impose a limitation of somekind on arbitrary power, thus being a necessary though not a sufficient con-dition for ensuring a social order having that minimum of equality requiredfor the exclusion of the more common manifestations of arbitrary power. 2

In any event, as equality before the law calls for something more than mereexistence of enunciated or declared rulesentailing their application as well,simple equality as generality, which as here understood refers only to declaredrules, cannot express the entire meaning of the principle of equality beforethe law in the sense relevant in this discussion, namely, the sense that courtsmust give equal treatment to people in like cases. Let us go on then to analysethe second version of the thesis of conceptual superfluity of that principle,now understood as equality in the application of the existing legal rules(where, by rules, I will mean not only statutory rules, but also precedentialrules, principles and all criteria that can be asserted as part of the law).

3.2. Equality as Legality: On Logical Irrelevance

If the principle of equality before the law were only another name forcorrectness in the application of rules, then a rule could not be infringed and,at the same time, that principle violated. This is because the meaning of thenotion of infraction of a rule would already include, without adding any-thing, the violation of equality in the application of the law. Even more,appealing to this latter principle would not only be superfluous but also


2 Isaiah Berlin precisely pinpointed this feature of general rules when, acknowledging thepossibility of rules being unequal by classifying people in certain ways, asserted that, as a


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distorting, by assuming to be different what is merely redundant. However,there are several reasons to reject this criticism.

First of all, that criticism would apply not only to the principle of equality before the law, but also to the principle of legality. If when a particular rule isinfringed there can be no more infractions than the infraction of the rule,then nobody can be said to be infringing the general principle that, in somelegal systems at least, commands some people (especially officials and judges) to respect and uphold the rules. Furthermore, this principle would be impossible to enact for conceptual reasons. But this is plainly absurd. Theprinciple of legality can well establish a redundant duty, but it is by no meansuseful and meaningful. And so it is with the principle of equality before thelaw, with the important difference that this latter does not establish aredundant duty, but a quite different one.

One of the main problems with Kelsens view lies in his statement thatcorrectness in the application of the law is correctness from a logical pointof view and has nothing to do with justice, and in his presupposed belief that such correction exhausts all that can be said about equality before thelaw. Nobody will dispute, of course, that correct application of the lawrequires logical correctness, but that is not all that can be said, since there ismore to the application of rules than this mere logical correctness.

In fact, it is clearly a mistake to assume that the existence of a logical require-ment makes a normative requirement, either moral or legal, superfluous, oris incompatible with such a requirement. To say that judges, like everyoneelse, should justify their judgements according to the rules of logic if theywant to think rationally does not at all make the legal and/or moral require-ment that they should justify their judgements according to the rules of logicbecause there is a legal and/or moral rule that commands them to think rationallysuperfluous, nor are the two claims incompatible.

Considered in themselves, the requirements of logic are only rules whichset out the means for achieving the aim of reasoning soundly according todeductibility and similar relations between assertions. Nothing more. But if the only relevant requirement in the application of laws were the rules of logic,a judge who infringed the former would only have violated a requirement of rationality. Nevertheless, violating such rules of logic can be, and usually is,and it is right that it should be, an infringement of moral and even legal duties,which can establish various normative consequences for that conduct (suchas criminal liability for violation of duties by the judge, the removal of the judge for mental incompetence, or the provision of appeals based on con-tradictions in the ruling). And it is this kind of normative requirement that

distinguishes the judges activity of complying with a rule of the legal sys-tem from the patients activity of complying with medical advice to exercisehis vocal chords every day by talking incomprehensible nonsense 3



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Apart from that, if Kelsens thesis were acceptable it would most probablyprove much more than he claimed, since he distinguished between equalitybeforethe law (or as to application of the rules) and equality in the law (oras to rules themselves) as quite different concepts. 4 Since in the Kelseniantheory any rule, either legal or moral, obtains its validity from the declarationof a higher ruleexcepting, of course, the rule that provides the first cri-terion of validity, it follows that his criticism of the principle of equalitybeforethe 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 non-application 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 toequality superfluous. I do not assert that this approach cannot be pursuedin fact it has been taken to extreme lengths by Westen (1981, 1990), whoseargument cannot be discussed herebut only that it goes much further thanKelsen presumably believed.

3.3. Equality as Legality: On Normative Irrelevance

Even accepting the previous arguments, one could replyalthough this isnot what Kelsen actually saidthat the normative duty to apply the lawequally is superfluous not because it is a requirement already set by logicwhich adds nothing, but because it adds nothing to the normative duty toapply 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 thenotion of equal application of law, because the first time a rule is appliedthere is no more than one term, and all equality relations demand at leasttwo terms to establish the comparison (cf. Lyons 1993a, 309). To put it an-other way, the court establishing the original precedent in a matter cannot byhypothesis account for any former precedent, and in that case it cannot violatethe principle of equality before the law, although it can violate the principleof 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 ac-complishing the duty to apply the law coincides with (or even is strictly thesame as) that of accomplishing the duty to apply the law equally, this doesnot mean that it is exactly the same duty. In general, it is by no means un-imaginable nor inadmissible that by conforming to a legal rule someonemight conform to other, different rules at the same time. Conversely, it isperfectly 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


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situation familiar to criminal lawyers, called ideal concurrence of crimesas when a person commits various crimes by a single action (for example,showing aggression to a judge could be at the same time a crime of assaultand a crime of contempt of court, irrespective of the fact that, by the prin-ciple bis in idem, the person cannot be punished for more than one of them).

Furthermore, infringing what appears to be one single rule can be wrong-ful for more than one single reason, and so the infringement too can be seenas a fact that in the end violates several criteria at the same time. Actually,the majority of crimes are in this category inasmuch as, on the one hand,they usually refer to kinds of conduct prohibited not only by law but also bymoral and other social rules, and, on the other hand, apart from the specificharm done to injured people, crimes can bring about general insecurity, in-cite other crimes, general economic costs, etc., i.e., they can infringe or affectvery different normative criteria or rules.

There is, however, a more fundamental and positive reason than these toexclude the conceptual identification between the principle of equality andthe principle of legality. It is that they pull in opposite directions in the caseof valid or applicable, but inefficacious or usually unapplied rules (a particularexpression of this is the case of rules applicable in a certain way but tradition-ally applied in another way). In such cases, constant non-application of therule treats all the addressees equally, although that treatment is differentfrom the treatment they would have had if the rule had been effectivelyapplied (again equally, but in the opposite way). And so, for example, givena valid rule that in fact has been ignored for years, the claimants requestfor the rule to be applied on its own terms for reasons of legality can beopposed rationallyi.e., without entailing either contradiction or nonsense by the defendant asking for the rule to be applied in the same way as it has been applied until the present moment, i.e., for the rule to be unapplied of reasons of equality of treatment.

The reason for this divergence in consequences of following the principleof legality or that of equality before the law lies, naturally, in the hetero-geneity of the two ethical and legal values which ultimately support thoseprinciples. On the one hand, the ultimate foundation of the legality principleis the value of certainty, which aims to assure the quality of judicial answers by pointing to solid groundsi.e., previous, known, stable and uniquecriteriasuch as those presumably given for obedience to the rules on theirown terms; on the other hand, the ultimate foundation of the equalityprinciple is the value of (formal) justice, which aims to ensure as a propertreatment like treatment for like cases. The same distinction can be made if,

accepting the conventionality of definitions, one wants to use a broaderconcept of justice, saying that legality aims to ensure justice as certaintywhereas equality before the law aims to protect justice as equality



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an equal application of the law, in the sense of a positive application of the rulein all cases to which it refers, rather than for equality in the application ofthe law, in the sense of equality in the treatment given to the addresseesof the rule in its process of application, a process that includes the differentinterpretations of its applications and even its possible non-applications.From a conceptual point of view (as distinct from the normative or evalu-ative 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 prin-ciple collapses into the principle of legality as correct application of the law becomes a trivial and entirely uninteresting tautology. However, this thesisis also unsatisfactory because it makes the potential conflict between the twoprinciples either irrelevant or inexplicable. Since that conflict is an expositionof different values, it is genuine and important.

As previously suggested, it is quite a different matter whether or not, froma 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 bygiving priority to the principle of legality over that of equality before the lawor vice versa. I shall return later in more detail to this point, but for now itsuffices to note that, as a clear case, it seems defensible to prefer the principleof equality before the law to that of legality when the non-application of therule is widespread and has been consolidated (so, this reasoning wouldallow a court to dismiss the application of a rule without accepting the al-ways precarious argument of desuetudo, which would assume a much toogeneral commitment and would be presumably less clearly sound). Anyway,the more relevant point here is that from a conceptual point of view there isnothing absurd in asking for equality in illegality, which is sufficient to showthat the principle of equality in the application of the law does not collapseinto the principle of legality.

4. On the Ethical Irrelevance of Equality before the Law

4.1. The Relevance of Equality before the Law

So far all I have attempted to show is that talking about equality in theapplication of rules makes sense, and that it is not a superfluous or, evenworse, a distorting principle. It is quite a different thing to show the prin-ciples ethical significance, which is to ask to what extent equality before thelaw must prevail over other possible criteria, such as substantive justice or,in the case of a valid but traditionally non-applied rule (or interpretation of

a rule), even legality. This is the point made by Kelsen when he maintainedthat equality before the law has nothing to do with justice since it is perfectlycompatible with very unjust and inegalitarian rules



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to do, that equality before the law lacks any ethical value whatsoever. Kelsenis right in pointing out that if a legal rule is unjust, its legally correct ap-plications 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 sucha principle, as well as the principle of legality and many other legal prin-ciples, is not an absolute and conclusive criterion, but only an overridableone. And it means therefore that when the rules are just and, perhaps, evenwhen they are not plainly or seriously unjust, the principle of equality beforethe law deserves considerable, though not absolute, respect.

Equality before the law has a role as an ethically sound legal principlewhen it functions in a framework that reasonably assures equality in the law,allowing exclusion, through judicial review, of the validity of rules that donot respect the basic requirements of equal justice in their classifications,imposing, for example, discriminations based on race, gender or the like. Inthis 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 rulesthemselves, does not only include equality in the law but also respect forother basic ethical principles, such as, particularly, basic human rights. So,for instance, punishment for a crime of blasphemy against the Christianreligion can be unjust because the rule that imposes it should be repealed (byparliament or by courts, depending on the kind of legal system) not so muchfor reasons of inequality in respect of non-punishment of blasphemy againstother religionsa fault that could be resolved by widening the rule, butfor 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 prin-ciple of equality before the law is insufficient because it does not serve tostop injustice, and when the rule is just the principle is unnecessary sincethen 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 toocrude an alternative, presumably based on clear-cut cases, which does notgrasp the complexity of the application of rules in legal systems. The clearcases are two in number: Firstly, the application of rules which seriouslydiscriminate against some people or which are for other reasons plainly unjust (for instance, the rule that excludes nationals of a given race or religionfrom the right to vote or the rule that forbids freedom of political expression);and, secondly, the application of rules which have always been straight-forwardly and one-dimensionally interpreted (for instance, the rule thatapplies a heavier penalty for an aggravated crime).

In both those kinds of cases equality before the law seems indeed toadd nothing. But that is only an appearance due to the fact that the twoare extreme types of cases standing in a line which also includes other



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existence of the unjust rule, but its mere application. Even more, although inperverse legal systems it will be preferable for the most part not to apply theunjust rules, it cannot be excluded that applying some of the less harmfulones equally could serve to limit the otherwise pervasive capricious arbit-rariness of the legal system, which could be a greater evil. So, it would bepreposterous 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 forpolitically disobedient Jews, if he or she has the opportunity to avoid it inone case; but it is arguably reasonable for a judge to take account of theprinciple of equality before the law and to deny the acquittal of the son of arich and powerful man for having violated the same dictatorial states ruleprohibiting nakedness on the beach when that is the rule usually applied. Allthat 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 incomparison be so low in regard to the material injustice of the rule and of itsapplication that it will usually in the end be scarcely considerable.

Whereas equality before the law bears some weight it is more clearlyperceptible when we consider rules which are only slightly unjust. Supposethat I go to a government office to ask for an official certificate and learn thatthe rule there is that they will receive my application today and deliver thecertificate tomorrow; while I am filling in my application I can see officialsreading newspapers and chatting; I also see another man presenting hisapplication with great familiarity to the official and note that he is told towait only a few minutes, after which he is given his certificate. Can I not justlycomplain that this is an unfair inequality in the application of an otherwiseslightly unjustified rule? Of course, as simple equality can always be got intwo ways (obeying and not obeying the rule in every case) and as the rule athand is rather irksome but not very onerous, I would want to be treated inthe same way as the privileged man. But the relevant point is that thereis also some justiceand presumably, if the rule is generally applied whenno other special reasons exist (such as extreme urgency or the like), more justicein complaining against the privilege, asking that the privilegedman be treated like everyone else, despite the possible injustice of the ruleitself. This would be impossible, I think, if equality before the law lacked anymoral weight and were ethically irrelevant.

At the other extreme, equality before the law also bears some weight incases of just rules which have usually been applied in a plain and simpleway, although that principle can seem almost irrelevant because of the some-what 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 seenin the following example, reflecting a typical situation admitting differentpossibilities all of which are acceptable and require a rule of co-ordination



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years, and that half of the houses will be reassessed each year; then supposesome local authorities split their cities by streets, some beginning with oddnumbers and others with even numbers, and other authorities split theirs by the names of the tax-payers, some beginning with a and others withthe first letter drawn by lot; now suppose that, when implementation of therule is still in its inception, a complaint against the vagueness of the statutoryrule reaches the Supreme Court, which in a reported judgement decides thatthe proper way of splitting properties for tax assessment is by a local draw;a week later, suppose further that another sitting of the Supreme Courthears 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 judge-ment has not taken sufficient account of the previous judgement (i.e., of theprecedent)? 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 acknow-ledge that where there are no significant reasons for changing the interpreta-tion of the rule already made, equality before the law remains a relevantreason (although presumably not the only one, as we shall see) to hold to theprecedent. 5

Finally, a third kind of intermediate situation in which the weight of equal-ity before the law is clearer is the reverse of the foregoing example. Supposethat in the office where I apply for a certificate I am told, instead, that evenif the legal rule requires certificates to be delivered a day later, they are usuallyproduced within five minutes; while I am filling in my application I can seeanother 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 thatnot unjust and arbitrary official conduct because of its contempt towards theprinciple of equality before the law? Can it not be said that such unjustinequality is a worse result than continuing not to apply the rule and, in thatparticular case, the principle of legality?

Therefore, equality before the law seems to bear some weight in everycase, although that could be more visible and specially relevant in inter-mediate cases such as the last three I have exemplified. However, in the firstof them the foregoing picture does not properly reflect the actual functioningof legal decision-making processes, since committed interpreters, as judges


5 Lyons (1984, 585) justifies cases of this kind, considering the original decision as a commit-ment, made to others, that future decisions in similar cases shall be made similarly. We neednot exclude the possible additional relevance of this kind of reasoning to maintain the relevanceof 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 ex-pectancy, not to follow a precedent such as that of the example in the text still seems to be wrongfor reasons of equality (in the example, moreover, I have introduced the feature that the second


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usually are, do not ask straightaway about the justice of rules, but abouttheir legal correctness (the answer to which, naturally, can be required moreor less openly to refer to criteria of justice but, as criteria embodied in thelegal system, never directly). So, hereafter it will be convenient to point outthe justification of following legally incorrect precedents rather than simplyunjust ones.

In the functioning of a legal system, then, it can be useful to differentiatefour kinds of application of rules when precedents are in point. At the twoextremes, the case of a clear legally incorrect application of the rules by theprevious decision (or decisions) and the opposite case of a clearly correct andindisputable 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 forrelying on precedent. In between lie the case of a slight or not serious legaldefect in the previous decision and the case of a previous application of arule which, at the time, admitted different interpretations because it did notmake much difference until one of them was settled. In the remainder of thepaper, I will consider the weight of the principle of equality before the lawin 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 hasto 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 muchweight? Authors who have asserted the relevance of that principle, such asDworkin and MacCormick, agree, for good reasons, that its weight as a rulefor following precedent cannot be absolute, but although both start off fromquite similar (though, as we shall see, not identical) assumptions in thismatter, they seem to arrive at quite different conclusions about the extent of that weight.

Ronald Dworkin quite clearly excludes the justification of a strict doctrineof precedent in his legal theory of integrity, which is simply another namefor the principle that we must treat like cases alike, meaning for him not onlythat the past must be allowed some special power of its own in court(Dworkin 1986, 16567), but also that present practice can be organised byand justified in principles sufficiently attractive to provide an honorablefuture (ibid., 22728). Besides, Dworkins view that judges act and have toact by constructing the best interpretation of the legal system, being quite

indeterminate as to the concrete weight of equality before the law in follow-ing precedents, seems to suggest that its weight is minimal when the previouscase gives an unjust or unsatisfactory answer in the light of the abstract



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255).6 If this conclusion holds, the rule of precedent, so justified for reasonsof 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 whichprecedents 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 asforward-looking, and even more the latter, as its forward-looking aspect iswhat governs the duty to decide todays case in a way one would stick to forthe future (MacCormick 1987, 161, n. 2; see also MacCormick 1994, 735). Itis this double aspect of the principle of formal justice as understood byMacCormick that explains his rejection of the strict doctrine of precedentthat requires all precedents to be binding (cf. MacCormick 1987, 158, 1712,182). However, presumably because MacCormick does not take so strong aview as Dworkin about the commitment of the legal system to powerful andstringent moral principles, he gives clear and important weight to pre-cedents, asserting a rather strong presumption in their favor and requiringnot simply countervailing reasons but, it seems, more exceptional reasons. 8That yields a not strictly binding but defeasible rule of precedent, whichrequires that precedents must be applied unless exceptions come into play. 9

Before analysing these two views more closely, let me introduce somedistinctions useful for understanding them better and discussing them fur-ther. 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 onemust follow a precedent, even if there is a considerable record of American Supreme Courtprecedents 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 thecommunity 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 thatDworkins theory gives more weight to precedent than I suggest in my interpretation (see a dif-ferent 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 legaldispute over abortion, he accepts that a precedent as important as Roe v. Wade should not beoverruled, after over twenty years, unless it was clearly wrong (Dworkin 1993, 171) and so, heseems to accept at least one of the two kinds of cases I have pointed out as typical of precedentialforce. However, since such a conclusion fits in with Dworkins interpretation considered best onthat particular matter, his criterion may not be sufficiently distinctive. Anyway, we can take theinterpretation 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 BielefelderKreis in a questionnaire about a Comparative Legal Precedent Study discussed in meetingsheld in Bologna and Florence on June 1994 with a view to a book on the subject that continuesthe 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 hasalready 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 conse-


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on the one hand, either to each particular court or to the judicial system as awhole, and, on the other hand, to respect or consideration towards preced-ents either of higheror only the highestcourts (vertical precedent) orcourts 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 afew comments can suffice in this context. The reasons of formal justice infavor of a rule of precedent which is not strictly binding apply not so muchto each court or judge but rather to the judicial system as a whole, becauseequality before the law gives relevancy to the relationship between citizensand state, not between citizens and a particular court. 10 If this is so, then theestablishment of a defeasible rule of precedent seems necessary only inregard to the horizontal precedents of courts of final resort (usually, at leastin important matters, the highest court). So, it is not excludedand perhapsmay not be required either, provided that a satisfactory system of judicialreview and harmonisation existsthat the other courts be subjected to a rigidstare 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 relativemerits of a rule of outweighableand a rule of defeasibleprecedent is especiallypertinent 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 forrationality as consistency among previous decisions, present decisions andthe 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 morethan 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 itpreferable to do so, even for the slightest reason one can think of. This con-clusion weakens the weight of the principle of equality before the law to theminimum, probably a good deal more than is assumed in Dworkins theoryand, 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 andlimited sense, as I had been interpreting it here until commenting onDworkins and MacCormicks theories, equality before the law is only backward-looking and requires (though not absolutely) consistency betweenthe 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


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understood explicitly by MacCormick and arguably by Dworkin, equality before the law requires present and prior decisions to be made consistent notonly by adjusting present decisions to prior decisions but also, if they differ,adjusting the prior to the present (in this case ideally or hypothetically, giventhe principle of res judicata, implying that the prior judgement has been amistake and should have been decided in the present and preferable way,i.e., either overruling or disregarding it). 11

As Theodore Benditt has pointed out, understood in the broader sense,neither logical consistency nor formal justice says more than that if the de-cisions of two similar cases are different, then at least one of them is (logicallyand/or normatively) incorrect, but it does not say which is wrong (Benditt1987, 8990). Note that here a statutory change makes both cases different, soavoiding inconsistency and a fortiori formal injustice, but the important thingis that, in this view, what Lyons has called (in a non-political sense) theconservative bias of the doctrine of precedent does not arise (Lyons 1993b,114). In the broader sense, formal justice is not disregarded but is actuallyaccomplished when a court says simply that todays decision seems to thecourt better than prior one(s). In its strict sense, however, equality beforethe law requires judges to honour prior decisions to a certain extent, whichexcludes simply saying that todays decision is preferable, as that is an insuf-ficient reason and allows one to assert that equality before the law has not been given any weight at all, and that in fact it has been disregarded.

Otherwise, as a mere conceptual point, a theory can hardly claim that it isdefending a rule of precedent if it allows deviation from precedents simply because they are incorrect. As various scholars have remarked, if the doctrineof precedent has any significant meaning, it would seem necessarily to implythat rules are to be followed because they are rules and not because they arecorrect rules (Wasserstrom 1961, 52). Although this is quite a strict senseof the idea of having a rule of precedent, 12 it does not entail that only a strictly binding rule is a true rule of precedent, since there is a sufficiently distinctive


11 However, MacCormick (1994, 74) also uses alternatively the strict sense of the principle whenhe 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 wereunderstood not only as respect for previous decisions but also requiring that I decide todayscase 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 thethesis that formal justice requires that it shall not, save for strong reasons, decide this case in amanner unlike the manner of its prior decisions in like cases (ibid.): If I am not wrong, thisconclusion is only educible from a strict sense of the principle of equality before the law, whichis 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 consideror 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


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rule of precedent if precedent may be disregarded when it is incorrect,provided that precedent is not disregarded whenever it is incorrect for anyreason whatsoever. Thus, Frederick Schauer set out the point exactly whenhe stated that if precedent matters as a rule, then even a prior decision now believed legally incorrect has to have some independentalthough I wouldadd, not absolute or conclusiveweight in todays decision (Schauer 1991,18283; see also Schauer 1987, 57172, 57576, 59294). 13


precedent, as a different distinction of that strictly or not strictly binding precedent: In the strictsense the rule of precedent embodies the duty of following precedents either without exception(system of strictly binding precedent) or excepting some more or less demanding reasons(systems of defeasible and outweighable precedent, respectively), but excluding the possibilityof freely not following a precedent. The broader sense of the rule of precedent, in which thecourt has the mere duty of considering or taking account of the precedents, includes the latter

possibility as well.In any event, the former distinction seems an important one not only (or perhaps not asmuch) regarding the traditional difference between common law and civil law legal systems, but also (or rather) the different effect of having a proper rule of precedent or not: Thus, for adecision-maker in a system which does not have a proper rule of precedent it is possible todecide each case in its own balance of reasons, trying to reach the best solution. In the contrarycase, when the system has such a rule, the decision-maker can sometimes be compelled tochoose a second-best solution (or, more precisely, what would be a second-best solution if asystem of precedent had not existed). This latter outcome arises either because the duty to fol-low precedent compels him to accept a criterion which he would have ruled out if such a dutyhad not existed or because of the consideration of his own present decision as forward-looking,i.e., with effects on future decisions (for example, in this last regard, holding that a racist public

comment gives rise to a cause of action in tort might be the best isolated decision, but could beoverriden for the differentnot isolated but relateddecision to rule it out by taking into ac-count the possibility of a future undue extension of that criterion to any troublesome comment)(see Schauer 1987, 58890; nevertheless, I would like to add that Schauer seems to generalisethis aspect of a rule of precedent by seeing only its price but not its value as to certainty, equality,efficiency, etc. in decision-making processes; for further comment on this issue, see infrafootnote 15 and the text it refers to).13 Schauer denies that any other form of precedent could exist except binding or necessaryprecedent, since either the precedent is followed because the case is similar (and then it is binding) or there is a reason for distinguishing it because the case is different (and then it is notin point and, therefore, it is not binding) or, in any other event, it is overruled (and then itsforce comes to an end). In neither case, Schauer argues, is precedent outweighed in the same

sense in which a rule is overriden by special reasons, as when one prefers lying in order to savea person from a murderer, where some of the force of the rule persists even though it maynot control the outcome. In the case of precedents, Schauer concludes, their weight is insteadeither necessary or absent but never presumptive (Schauer 1987, 59394 and n. 47) and so, thecategories of defeasible and outweighable precedent would be, according to Schauers view,misleading and empty. However, on the one hand, the idea of presumptive (or defeasible oroutweighable) precedent continues to have a useful meaning if referred to the different rulesthat legal systems can contain about the duty of following precedents for a court, which can beabsolute, binding it to follow or to distinguish them (rule of binding precedent), or not absolute,allowing it to depart from them when exceptional reasons apply (rule of defeasible precedent) orcountervailing reasons exist (rule of outweighable precedent); on the other hand, althoughthe notion of departing from a precedent could be generally matched with overruling it, there

remains another possibility, where the analogy between overriding a rule and outweighing aprecedent (without overruling or distinguishing it) still holds when the actual normativesystem does not contain a rule of priority which deems every precedent not followed to be


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5. Equality, Legality and Flexibility

Even if the immediately foregoing discussion has been chiefly analytical, notfavouring either of the two versions of the principle of formal justice, myanalysis of equality before the law has assumed the correctness of the strictversion. All I can do now is to extract the conclusions of the main argumentin its favor stating that in a legal system reasonably able to expel unjust andunequal rules, the principle that people deserve to be treated equally beforethe law, always provided that legislation remains the same, requires judicialprecedents to be followed when the criteria they contain are not clearly ornot sufficiently incorrect in the light of the existing law. This is because itturns out to be better to take todays decision on the previous either indif-ferent or slightly debatable criteria, by virtue of the addition of the principleof equality before the law (and probably also other principles which favorfollowing precedents, such as those of the certainty and reliability of rulesand, to a lesser extent, 14 the efficiency of the judicial system 15).

This seems to justify a rule of defeasible precedent that requires judges tofollow a precedent not only when its solution is clearly and positivelycorrectin the sense of the single correct answer, as in an acquittal of onecriminal charge supported by dubious evidencebut also in two otherkinds of cases. Firstly, when the solution itself wasand, had it not beenadopted in a previous decision, it would have continued to beuncertainor indifferent, in such a manner that it is not by itself clearly either correct orincorrect, and no other alternative solution would be either 16 (obviously,


them overruled, i.e., rejected or definitively ruled out. Thus a later decision may outweigh theimmediate previous precedent in favor of an older solution without establishing a newcriterion, merely recovering the former one.14 To a lesser extent, I say, because efficiency can also be got by other means, such as spendingmore resources, discouraging appeals by economic burdens, etc.15 Expanding on some points I made supra in footnote 12, the texts comment means that, in theend and all things considered, the outcome of a decision taken under a rule of precedent could

be the best one once we add to the balance the virtues of having such a rule, even if the outcomewould have been better without it. This seems quite clear at least in the backward-lookingaspect of precedent (i.e., inasmuch as the decision-maker is constrained by past decisions), butit is also arguable that it is the case even in its forward-looking aspect (i.e., inasmuch as adecision-maker has to consider the possible future effects of todays decision), which is but aconcrete expression of the problem of whether to have rules in the strong sense of the word, aspatterns which must be followed for their own sake and not for the justifications backing them.This is not the proper place to discuss the matter in detail, and it may suffice to observe thatthere is something paradoxical in the core of Schauer (1997), something which is clearly laid open,for example, when he asserts that rule-based decision-making can be seen to be intrinsically andlogically conservative (in the non-political sense of that word), abjuring the possibility of completeoptimisation in an attempt to avoid disaster (Schauer 1991, 102); but if, all things considered,

it is better to have rules to resolve some kinds of disputes instead of leaving the decision-makerto search for the best outcome on the particular balance of reasons in each case, then in reality,ex hypothesis, the best outcome as a whole (i.e., in more cases than in a decision-making system


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ex hypothesis, this will not occur if a distinct and clearer or more preferablesolution arises at the time of the later decision). Secondly, when the formersolution is slightly incorrect, in the sense that it does not plainly violate thethen existing law, and in todays similar case the weight of that defect is notas 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, suchas legal certainty, reliability and efficiency.

This second kind of case can seem somewhat doubtful and disputable fortwo 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, evenslightly, can be disputable because some people will consider that reasonsfor generally following precedents are and should be counter-balanced andeven overruled by reasons against it, such as, on the one hand, the necessityor, at least, the convenience of keeping a flexible connection between socialchanges and legal rules through the judicial application of the law, and, onthe other hand, the overriding weight of the principle of legality comparedto the weight of equality before the law. Let us look at both more closely.

As for the flexibility argument, the argumentation developed here makesit possible to give a better account of this kind of reason without presentingit as a generic counter-balancing consideration against the rule of followingprecedents in every case. Rather we must say more precisely that, if it is ac-ceptable for judges to introduce changes in the rules when social circum-stances have changed (in fact, some legal systems even accept it expressly intheir statutory rules on legal interpretation, although reasons could be pre-sented against this sort of judicial carte blanche), these changes must be impor-tant enough to count as a reason why the criterion applied in the previouscase has now become seriously incorrect, not merely remaining as a slightlyincorrect one.

The plea for the principle of legality exhibits other problems. Consideredas a simple legal argument, such a plea will be self-defeating if the concretelegal system contains, formally and/or by tradition, a rule of precedent which,embodying or presupposing the relevance of the principle of equality beforethe law, requires precedents to be followed at least when they do not estab-lish seriously incorrect criteria. For, in such a case, it will be impossible to setin 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 legalsystem which does not contain any proper rule of precedent the prevailing



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are decisive as to the question of the appropriate or justifiable weight thatequality before the law should have in a legal system. In my opinion, asmentioned before, when the incorrectness of the precedent was not serious(or has not for other reasons become so) equality before the law is to prevail.And, rather than limit myself to repeating the idea, let me illustrate it withan actual Spanish case.

Two tenants of a house had substantially identical contracts with the sameproperty company, which according to one interpretation raised both rentsin a given way (let us say, annual increase based on the original rent). Bothtook legal action against the company and two different courts acceptedtheir claims, interpreting the contract in another way (let us say, annual increase based on the previous years rent). The company appealed against both judgements to a higher court which gave, in two different sittings, differentand final judgements, one granting and the other dismissing the appeals.The tenant who lost, whose judgement was handed down later of the two,lodged an individual complaint before the Constitutional Court invoking theconstitutional principle of equality before the law. The Constitutional Courtdismissed the appeal, holding that although that principle requires everycourt to follow its own precedents unless it furnished a sufficient reason, whichwas not done in the case, the individual complaint before the ConstitutionalCourt cannot be the proper way to redress contradictions in the lower courts judgements (see Spanish Constitutional Courts Auto 862/1986, October 29).In cases like these, is it not irrelevant whether the first judgement interpretsthe contract terms correctly? Does not the principle of equality before thelaw plainly have more weight than a presumed respect for a limited anddistorted view of legality? And, finally, does not disregard of equality beforethe law on behalf of legality, tend to conceal and even to support the coex-istence of different, usually opposite, judicial understandings of the samelegal rules, which in fact are unequally applied to the same kind of people?

In short, all previous arguments conclude that equality before the lawprovides a substantive reason for following a rule of defeasible precedent,meaning that subsequent decisions must not only take account of priordecisions, but also give them a certain weight, not overridable unless suf-ficiently strong reasons can be shown. Or, to put it another way, equality before the law seems to set the onus of justification upon the reasons for notfollowing the prior decision. And the reasons I have given here for thatconclusion, or so I hope, set the onus of justifying the view that it does nothold upon those wishing to maintain a different conclusion.

Autonomous University of MadridFaculty of Law28049 Cantoblanco



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