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Thoughts about Stare Decisis:
The Peruvian experience
Algunas consideraciones generales sobre
el Stare Decisis: La experiencia peruana
Luis José Diez Canseco Núñez
Dean of the Universidad Tecnológica del Perú
City:
Lima
Country:
Perú
Dominique Emilia Reinhart Collantes
Independent legal researcher
City:
Quito
Country:
Ecuador
Original Article (Miscellaneous)
RFJ No. 13, 2023, pp. 140 - 155, ISSN 2588-0837
ABSTRACT:
This research is a miscellaneous reflection on the
“Stare Decisis”
and
“Certiorari”
principles. It is assumed that
courts are activists of law and, therefore, are also creators of
law. This entails a frank and open discussion on what is the true
objective of a justice system: the judge’s pursuit of Justice versus
the positioning of dynamic efficiency and sustainability as the
main and decisive variables. The different aspects addressed
by the article are presented openly and do not imply - per se
- the closure of a debate that should be considered relevant
and current. On the contrary, the ideas in the article lead to
rethinking the scope of Law, understood instrumentally, i.e.,
as a tool for development and greater equity, and to approach
desirable scenarios of social justice.
DOI 10.26807/rfj.vi.461
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KEYWORDS:
justice system, stare decisis, certiorari, efficiency.
RESUMEN:
Este artículo plantea a modo de miscelánea una
reflexión sobre los principios
“Stare Decisis”
y
“Certiorari”
. Se
asume que
las cortes son activistas de Derecho y, por lo tanto,
son también creadoras de Derecho. Esto conlleva plantear una
discusión franca y abierta sobre cuál es el verdadero objetivo
de un sistema de justicia: la búsqueda de Justicia por parte del
juez versus el posicionamiento de la eficiencia dinámica y la
sostenibilidad como variables dirimentes y principales. Los
distintos aspectos abordados por el artículo son planteados de
modo abierto y no supone -per se- el cierre de un debate que
debe ser considerado como pertinente y actual. Por el contrario,
las ideas dentro del articulo llevan a repensar el alcance del
Derecho, entendido de manera instrumental, es decir, como
herramienta para el desarrollo y la mayor equidad y acercarnos
a escenarios deseables de justicia social
PALABRAS CLAVE:
sistema de justicia, stare decisis, certiorari,
eficiencia.
JEL CODE:
D63, H21.
INTRODUCTION
We present to our readers a very interesting and little
explored issue in Latin America, which is linked to the issue
of binding jurisprudence, also known as the
“Stare Decisis
”
principle.
1
But what are judges there for? to seek justice? is the
real objective to do justice or is it to generate legal certainty?
The correct answer is that the administration of justice does
1
We thank the GIDE team for their collaboration in the preparation and
review of the document. We also thank the Universidad Tecnológica del
Perú for its institutional sponsorship.
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not seek justice, it seems untrue, but the administration
of justice seeks legal certainty and why the objective of the
administration of justice is not justice, for a very simple reason
because this is a very subjective concept and, in addition, what
is fair for the members or let’s say the winning party will be
somehow unfair to the losing party, so this is one of the typical
dilemmas that arise.
In this order of ideas, this article of reflection and
analysis will present some considerations and reflections on
the transcendence of Stare Decisis for the justice system, with
emphasis on the Peruvian experience.
1. INITIAL CONSIDERATIONS
Based on the questions raised, we consider that the
discussion related to the principle of “
Stare Decisis”
(Camarena
González, 2016) and
“Certiorari
” becomes important and
relevant. In all our countries the actions of the judicial powers
are always criticized and it is argued that the judges, the Judicial
Administration, the Supreme Court, and the Courts of Appeal,
are not speedy, therefore, there must be a mechanism for cases
to be resolved quickly since there are very few judges and that
it could result in having more judges than currently exist but
we consider that this also involves a significant social cost. In
addition, it does not mean any improvement
per se.
For example, Peru has proportionally more judges per
capita than the United States, a detail that shows that the good
administration of justice does not depend on the number of
judges.
Although it is noted, by some critics, that the rules
should be changed, i.e., to make the rules much more suitable
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for cases to be resolved much more quickly so that there is
more than a chance for litigants to resolve their cases speedily,
does this imply an action with an immediate adjustment effect?
We assume the answer is no.
Another problem that is always pointed out is that
there is a lot of corruption in the judiciary and of course that
judges “sell out” or “do things as they please”, again it is argued
that the solution to the judicial problem must be found and that
this implies the adoption of modern computer management
systems. Again, does this imply an action with an immediate
adjustment effect? For the second time, we assume that the
answer is negative if this action is considered univocally and
not as part of a reform package.
At other times it is argued that the solution to this
legal problem is for judges to have access to better salaries
and, obviously, for the administration of justice to have
a higher budget. However, this
per se
is not the cure for the
institutionalized evils in justice in our countries.
2. FURTHER CONSIDERATIONS
Another issue, and therefore the Council of the
Magistracy, or the Academy of the Magistracy has existed in
Peru, is that judges must be trained. This assumption has been the
typical variant that both the World Bank and the International
Monetary Fund, the Inter-American Development Bank, have
considered a necessity in all the judicial reform processes that
have been proposed in all Latin American countries. These
have involved the search for alternatives in different orders.
Unfortunately, all of them have failed because none of them
attack the real problem, but what is the way to attack it?
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The structure of the Peruvian State is defined by the
division of power or three powers in the Peruvian case: the
Executive Power, the Legislative Power, and the Judicial Power.
Certainly, it is mentioned that the three are equivalent and that
they are part of the division of powers of the State. And the
question we must ask ourselves is: What is the reason why you
can say that you are a power of the State? And the reason is not
that the Constitution says that you are a power of the State. The
reason is not that the law says that it is a power or because the
doctrine says so or because it has been taught to us since the
first year of law school or even in high school.
Being a State Power means that you can change things
or legislate, although it may seem untrue, the Legislative Power
by definition is the main power in terms of dictating laws,
but the Peruvian Executive Power also dictates laws because,
in some way it does it through its supreme decrees, organic
decrees, among others, in some way it establishes provisions, it
also exercises the power to administer and generate norms. The
legislature is a power because it dictates laws, and the Judiciary
is also power not to the extent that it administers justice or
because it dictates norms but because of what is called binding
jurisprudence.
With this idea of power as novel as the possibility
that the so-called Judicial Power has in the confirmation of
establishing binding jurisprudence is that it establishes the
real power that the Judicial Power has in some way. Another
concept that is very important for us to keep in mind is that in
law school comparative law has always taught us this idea: What
is the primary source of law? What is the secondary source of
law? Jurisprudence. What is the third source of law? Custom.
What is the fourth source of law? Doctrine. This is the case in
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all civilized countries of the world. But what happens in the
framework of the Andean Community and Latin America the
order is different, first, the normative order is the legislation,
although it may seem untrue, the second is the doctrine and the
third is the jurisprudence.
3. ON JURISPRUDENCE
Case law is a minor source of law, at least in my
experience. A secondary source of law is also doctrine, i.e.,
what a law professor says, what a treatise writer says, what a
law book says is sometimes relevant. In general, however, it is
less relevant than what the jurisprudence in our courts says.
Why is the jurisprudence in our courts not so relevant? In the
Peruvian case, we find that Supreme Court A says one thing
that often contradicts what Supreme Court B says. The same
chamber in case A says one thing and fifteen days later exactly
the opposite, the judge of a province or a department of my
country has one thing, and the judge of another jurisdiction
says exactly the opposite. That is to say, the judge interprets
“as he pleases” and here we are in a serious problem because he
assumes that we are at his whim and here we are not in a serious
problem because we are supposed to be before a power that
legislates through interpretation of the norm and this should
be a report and not leave each judge free to do as he pleases or
interpret as he pleases.
Furthermore, we have to talk about several types of
jurisprudence, in general terms, the doctrine speaks of two
main types of jurisprudence: a) doctrinal jurisprudence which
is normally the
“obiter dicta”
or the opinion given by judges
regarding a particular case, and which in some way serves as
non-binding guidance for judges and deals with the way they
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should decide; b) the second type is binding jurisprudence, and
c) the third type is constituted by the first type of jurisprudence.
In our opinion, both are similar since normative jurisprudence
when it is binding jurisprudence concerning a pre-existing rule
will imply that the judge interprets it in a particular way. The
difference in the case of normative jurisprudence lies in the fact
that when there is no norm, the judge will establish his legal
criterion for this legal void. In general terms, binding case law
and normative case law are almost the same and this is what is
known in the Anglo-Saxon system as
“Stare decisis”
, which is
the subject of this contribution (Civitarese, 2015).
4. HISTORICAL CONSIDERATIONS ON STARE DECISIS
What does
“Stare decisis”
mean
?
It is a Latin expression
from the time of the Romans that says:
“Stare Decisis et non
quieta mover”
which means
“stay to what has been decided and
keep still”
. This indicates the Supreme Court when it determines
in an indubitable way how the legal norms are interpreted in
a concrete case and, therefore, it is implemented establishing
as a precedent of obligatory observation for all jurisdictional
bodies, and all Supreme Court sentences in general lines must
establish this
“Stare Decisis” which
is a binding jurisprudence.
An example that I have put in class on several occasions
is the following one, the check signed upside down can be
increased validly that it is an expression of will fact that is
signed upside down does not invalidate it does not matter what
matters is that it was this signed, is upside down or not, it does
not matter what matters is signed. But there can be counter
documentation, that the check says that another value has a
set formality and as it was signed upside down the formality
was breached the arguments are perfect. But what does the
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Supreme Court do through the “Stare Decisis”? It says for
better or for worse if it is valid and, therefore, what happens
from that date on, the hundreds of thousands of cases that there
were at that time on the matter of checks signed upside down
are automatically resolved and there would be no need to be
debating, for a court to say one thing and another chamber to
say another and a court to say the other. Therefore, the
“Stare
decisis”, in a way,
what this case generates is a precedent that
makes it obligatory, that regulates how a concrete case must be
interpreted from that moment on and, therefore, all the cases
that are linked in the future must be seen in that way, which
generates not justice but what will generate legal certainty,
which is finally the most important thing for a country to be
able to move forward.
This is normally done in the framework, as occurs in
Ecuador and Peru. The Peruvian Supreme Court is dedicated
to establishing decisions in the framework of cassations is
the ideal scenario for it to interpret the norm. Therefore, the
development of this principle of
“Stare decisis”
has always
been incorporated. It starts from classical Roman law and is
maintained during the Roman Empire and includes the
Code
of Justinian
in the 6th century AD. Although the crisis of the
Roman Empire made all the principles of Roman law gradually
“disappear” (fall into disuse), however, in the 12th century A.D.,
the Code of Justinian reappears and incorporates into the law,
not so much in countries like France, Germany, among others,
which were very “codigueros”, but in the
English system
, i.e.,
which had another normative source such as custom. Certainly,
the identity and custom were not clear, therefore, they rescued
the principle of “
Stare Decisis”
from Roman Law for when the
Supreme Court at that time, the House of Lords, decide on what
becomes or not a binding jurisprudence.
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As we have observed, this principle, which has its
origin in the Roman system but which, in the countries of
continental tradition went unnoticed and is incorporated into
the Anglo-Saxon system, is linked to the concept of the Bill of
Rights and the English unwritten Constitution and from there it
is consolidated as the great principle to guarantee legal stability.
What happens, normally, in the Anglo-Saxon system of law
and what then happened in continental Europe, this principle
somehow remained in the European system. Later, Napoleon
Bonaparte somehow “with the stroke of a pen” eliminated the
principle of
“Stare Decisis”
because Napoleon considered the
most important source of law to be the code. Therefore, to a
certain extent, with Napoleon, the jurisprudential system is
set aside as the most important source of law and the written
rule becomes the most important source of law. And why
then is the principle of
“Stare Decisis”
important? Because it is
necessary to maintain this system as the most important source
for the structure of law and legal certainty. Because it promotes
procedural speed, avoids corruption, generates institutional
credibility, promotes investment, revalues the judiciary, avoids
political pressures, and confers stability, predictability, and
rationality to authority.
5. ADVANTAGES OF STARE DECISIS
Starting from the idea that the Supreme Court in the
framework of the legal institute of cassation establishes as its
objective to establish precedents of binding jurisprudence, we
will analyze the different reasons why, in my opinion, this is the
system that our country should work on and impose.
So, first, the procedural celerity that is verified when it
is already known how the Supreme Court is going to resolve in
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some way based on the principle of
“Stare Decisis” as it
happens
in the United States, England and common law countries
discourages the filing of lawsuits whose possibility of success
is not reasonable.
Secondly, the judges already know how they are going to
resolve, the resolutions become faster and, therefore, this also has
an advantage because it reduces the work of the judges and the
need to enter complex legal discussions. After all, the Supreme
Court has already determined in the framework of a song what
was the right thing to do, which generates procedural speed.
Third, they limit corruption because it is logical that
since it is already known how it will be resolved in advance,
the discretion of the judges in the interpretation of the legal
norm is reduced. We have always expressed our discomfort
about judges interpreting the law as they see fit, of course,
corruption is behind these strange payments that are made in
jurisdictions to judges to “resolve”. This entails the risk that a
case is decided in a completely different sense. It also implies
that
objective standards
are established to determine when the
judicial interpretation departs from the spirit of the norm or
the famous
prevarication
. By the way, to prevaricate is not to
go against the express text of the norm, to prevaricate is to
twist the interpretation of the norm. If the norm has already
been interpreted by the Supreme Court in a sense A, then if
the judge does not interpret what the Supreme Court said, he is
prevaricating, then this generates the possibility that judges are
not corrupted.
Another very important element is the existence
of each jurisprudential line generating greater confidence
in the Judiciary and providing an image of transparency and
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impartiality, it makes the Judiciary respected, the judicial
institution is respected, and provides a very clear chair of
transparency towards the judge or the system, therefore, This
situation of not having contradictory sentences generates
credibility in the Judiciary, allows the quality of the resolutions
and the service provided to the citizens to be seen progressively,
a situation that generates a virtuous circle in favor of the
administration of Justice.
In addition, there is a very important element, and it
is the issue of
legal certainty
, to the extent that it is known in
advance which is the jurisprudential line that the Supreme Court
through the cassation, via precedent of mandatory observance
generates legal stability, it is already known how the law was
applied in specific cases and this is legal certainty. This would
generate a more favorable investment climate, thus reducing
the risk of the country and therefore investors decide to invest
in the country. What investors are most interested in is that
there is legal certainty because there are rules that provide legal
certainty, but that is interpreted with certainty and that is what
makes the business climate adequate and, therefore, generates
higher levels of investment will provide more jobs and there
will be a greater contributive capacity in society, ergo the
system works properly.
Another relevant issue is that there is a great crisis
in Latin America regarding the valorization of judges, to the
extent that this principle of
“Stare Decisis”
exists, the service is
much more transparent, more efficient, and legitimized. There
is nothing more important for the justice system than the social
perception of the figure of the judge, and this rises considerably.
This is what happens in all the countries of the Anglo-Saxon
system where the
“Stare Decisis”
exists. That is to say, the judge
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is “a gentleman judge” and nobody messes with them because it
is known what they are called, that they are transparent people,
and that they apply the principle of
“Stare Decisis”
in a proper
way. This makes the process much faster and, therefore, the
judiciary takes on greater importance. However, we cannot
deny that there are discordant voices such as the one expressed
by Núñez Vaquero (2016).
Let us also remember that the “Stare Decisis” is a
mechanism that should also promote private investment and,
therefore, allow the Judiciary to justify a system of improvements
and, most important of all, the “Stare Decisis” system should
avoid political pressures which, as we know, involve the political
power pressuring the judges to “interpret” the rules according to
the interests of the Government of the day.
In Peru, during the Fujimori dictatorship, the Executive
not only controlled the Executive, but also the Legislative and
the Judiciary, and therefore controlled the Supreme Court and,
consequently, the Supreme Court ended up issuing rulings
following the preferences of the Executive. On the other hand,
as the legal principle of “Stare Decisis” or binding jurisprudence
becomes more vigorous, it is very difficult to change whimsically
a jurisprudence that has been repeated and consecrated for
many years and it is very difficult to distort what the judges say
and what the justice system seeks in the long term: dynamic
efficiency and sustainability
2
in the provision of the justice
service in an open and democratic society.
2 We understand dynamic efficiency as the capacity to adapt, respond and
generate new knowledge. This within an environment of maintenance in
time or sustainability of results (which involves the fulfillment of objec
-
tives and certainly, to satisfy the objects of a social system (justice, pro
-
ductive or economic process, among others)”.
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6. ON
CERTIORARI
As we can see for all these reasons the principle of
“Stare Decisis
” is extremely important. Binding jurisprudence
is very important for all the reasons we have explained, but of
course, from time to time, it is necessary to change it. Legal
circumstances or social or economic circumstances make it
necessary to modify the judgment on a subject matter, this is a
situation that reflects the evolution of the law, and here comes
the exception to the rule of
“Stare Decisis”
which is the principle
of
“Certiorari”
or
certification
.
What does
“Certiorari”
mean
?
It is the mechanism
through which the Supreme Court of Justice has the power to
select cases that it considers important for economic, political,
social, or other reasons, on which it will apply the principle of
“Stare Decisis”
(Weigand, 1994). This does not mean that all
the sentences that go to the Supreme Court must be subject to
review, which happens in many countries.
The American case that leads to a request for review on
appeal and/or cassation and the American Supreme Court, for
example, decides to consider that the case is no longer worth
seeing and what is limited to say,
“Certiorari di nai”
, which
means denied or not subject to review, because there is already
extensive prior case law that resulted from the issue previously
examined.
With this type of mechanism you are not overloading
the Supreme Court with thousands of cases on which it will have
to resolve what has already been resolved, but simply limiting
itself to say
“Certiorari di nai”
and of course, there is the other
possibility that they indicate “
Certiorari ofrecido”
which means
that part of the request is considered: This is identified in the
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decisions of the American Supreme Court or the Supreme Court
of the English House of Lords. It assumes that the case merits
review or deserves to be heard adequately. The U.S. Supreme
Court by 1888-1891 had an avalanche of cases, -approximately
2000 cases in reserve- and was three years late in sentencing.
This was generated around 1891, 121 years ago, protests from
judges, businessmen, and civil society, among others.
In that order of ideas, we must bring up what happened
with the Supreme Court of the United States when it was
verified that it was taking too long to resolve (a typical and
current problem in Peru) and the risks of an indiscriminate
Stare Decisis. In addition to Stare Decisis, the decision was
made to incorporate the “Certiorari” principle whereby when
a minority of four of the nine justices of the Supreme Court
say that a case is important, the position of the minority is
respected, and the case is analyzed by the U.S. Supreme Court.
In this way, the dictatorship of the majority is avoided, and the
minority is respected.
CONCLUSIONS
By way of conclusion and final reflection we would
like to share with you a historical fact, it is interesting that the
U.S. Supreme Court until 1914 offices were in the basement of
the Capitol and the judges were not full-time but were judges
“scattered” throughout the United States and that they met
from time to time to establish their resolution on the cases to
be resolved.
Certainly, the subject has evolved from five thousand
cases that with the incorporation of the
“Certiorari”
and the
rational use of the
“Stare Decisis”,
currently, the American
Supreme Court does not resolve more than 400 cases per
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year, with which, the system has acquired predictability and
its sentences of the Supreme Court acquire great relevance
and importance. This must be incorporated with efficiency,
efficacy, and effectiveness in Peru and the rest of the Latin
American countries. Certainly, the search for balance for the
benefit of society and the establishment, consolidation, and
respect for a justice system that meets the objectives expressed
by the rationality that sustains it and gives it its raison d’être is
still a pending task.
REFERENCES
Civitarese, S. (2015). A European convergence towards a
stare decisis model?
Digital Journal of Administrative
Law
. (14), pp. 173-194. DOI:
https://doi.
org/10.18601/21452946.n14.09
Camarena González, R. (2016). From jurisprudence constante
to stare decisis: the migration of the doctrine of
precedent to civil law constitutionalism.
Transnational
legal theory
, 7 (2), pp. 257-286.
https://doi.org/10.10
80/20414005.2016.1205871.
Núñez Vaquero, A. (2016). Without precedent: a skeptical
look at the rule of stare decisis.
Doxa. Cuadernos de
Filosofía del Derecho
, (39), pp. 127-156.
https://doi.
org/10.14198/DOXA2016.39.08
.
Weigand, R. E. (1994). Managing beliefs, managing silence.
Business Horizons
, 37 (6), pp. 58-65.
https://doi.
org/10.1016/S0007-6813(05)80246-0
.
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Received:
14/08/2020
Approved:
09/12/2022
Luis José Diez Canseco Núñez:
Dean of the Law Faculty at
Universidad Tecnológica del Perú and Partner Director at
DiezCanseco Competencia & PI.
City:
Lima
Country:
Peru
Email:
ldiezcanseco@dclegal.pe
ORCID:
https://orcid.org/0000-0002-2350-4645
Dominique Emilia Reinhart Collantes:
Independent Legal
Researcher
City:
Quito
Country:
Ecuador
Email:
emiliareinhart1@gmail.com
ORCID:
https://orcid.org/0000-0002-7894-9238