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61 Temple L. Rev. 871 (1988)
Four Theories of Precedent and Its Role in Judicial Decisions

handle is hein.journals/temple61 and id is 881 raw text is: FOUR THEORIES OF PRECEDENT AND ITS ROLE IN JUDICIAL DECISIONS James J Eisenhower, III* INTRODUCTION When the lawyer, judge, or legal philosopher thinks of the doctrine of pre- cedent, he or she begins with a conception close to that of Blackstone: It is an established rule to abide by former precedents, where the same points come again in litigation: as well as to keep the scale of justice even and steady, and not liable to waiver with every new judge's opinion.' The idea of precedent is so firmly established in our legal system it is iconlike. Though it has been described as the everyday working rule of our law,12 we nevertheless remain divided on its uses and limits. Conservatives and liberals argue that their approach to the important legal issues of our time are rooted in precedent and history. Is the doctrine so open to interpretation that it is now meaningless? This article offers a critique of four separate theories of the role of precedent in judicial decisions, a role which, though controversial, remains vital to the integrity of the American legal system. THE ROLE OF PRECEDENT Precedent can be defined as a binding rule that has been stated and acted upon by judges in individual decisions. The accumulation of these decisions, or rather the bases of these decisions, form a body of common law that binds later courts. The general rule, and distinctive quality, of precedent is that every court is bound to follow any case decided by a court above it, and appellate courts, other than the United States Supreme Court, are bound by their own previous decisions. The binding nature of precedent is derived from the general maxim that like cases should be decided alike.3 This concept is based upon the idea that judicial decisions, in order to be fair and predictable, must be consistent. The legal doc- trine of adhering to precedent is termed stare decisis.4 Its application results in court-made rules that resemble legislation by attempting to maintain a consis- tent body of law that the public can look to and predict whether an individual act will fall within its confines. * Member of the Bar, The Commonwealth of Pennsylvania. B.A. Temple University. J.D. Antioch School of Law. MPhil, DPhil (A.B.D.), Oxford University. I am grateful to the Honorable J. Sydney Hoffman, whose profound understanding, and creative use, of precedent has been an inspiration. I. W. BLACKSTONE, COMMENTARIES *69. 2. B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 20 (1921). 3. See generally H.L.A. HART, THE CONCEPT OF LAW 121 (1961). 4. BLACK'S LAW DICTIONARY 1261 (5th ed. 1979). 871

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