Precedents

The fact that the precedent is weakly binding is based on the following technical norm: If you wish to produce a decision that is unlikely to change in a higher instance, give the precedent the weight of a legal source.

On the other hand, being weakly binding also means that the precedent is not legally binding toward another court (Stromholm 1988, 333; Peczenik 1997b, 461; Marshall 1997, 503). Such an effect has not been given to the decisions of the highest instance in the Nordic countries, which is also illuminated by the fact that a decision that only refers to precedent is not sufficiently justified as a valid legal decision (Aarnio 1997, 85).

An interesting exception to the legally binding force of the precedent can be found in Section 21 of the standing order of the Finnish Supreme Court. Pursuant to the provision, the Supreme Court itself is bound to a decision it has given in a similar matter. If it is wished to deviate from the line, the decision has to be made in a strengthened division or in plenum. Thus, it could be said that the decisions are horizontally legally binding for the part of the Supreme Court (Aarnio 1991, 67).

The theoretical questions, why and to what extent should the precedent be followed are widely discussed in the theory of law.

(1) Precedents promote uniformity of practice. For instance, according the Finnish procedural law, this purpose is the main reason for making decisions of precedential value.

(2) For the economy of the working procedure, it is appropriate to avoid evaluating similar cases afresh.

(3) The expertise of the courts increases the higher the instance that is solving the case. This results from the structure of the courts. In most countries, the higher courts consist of sections of more than one judge - in Finland, for instance, the section of the Supreme Court is normally five judges (Aarnio 1997, 66).

(4) The flexibility of adjudication is an advantage compared to the legislation, which cannot react to the changes in society as effectively as the courts.

On the other hand, there are also some contra-arguments, which show that in the statutory law system, too extensive use of precedents causes difficulties as regards the judicial ideology. First of all, the constitutional task of the court in the demo­cratic Rule of Law State is to solve single cases, not to give general rules. The latter task, according to the separation of State powers, belongs to the Parliament. The precedent is, however, a general norm to be followed in all similar cases. Therefore, a too extensive ruling by the precedents may be in conflict with the principle of the separation of State powers.

The increased power of the high courts is contestable from the democratic view­point. Parliament is elected according to the rules and principles of democracy, not the courts. As far as the Western democracies are concerned, the danger of a “judge state” (Richterstaat) must not, however, be exaggerated (Peczenik 1989, 336). For instance, in Finland, the prospective ruling performed by the Supreme Court is limited and fits well into the frame of democracy (Aarnio 1997, 99).

Sometimes, the notion of precedent refers to the facts (case) on which the deci­sion has to be given. In this contribution, the term “precedent” means the decision made by the highest court. This conceptual choice makes it clear that the precedent is a norm to be followed in an identical or similar (analogous) constellation of facts. The essential elements that define the use of a precedent in subsequent cases are the ratio decidendi. The other elements are obiter dicta. The ratio decidendi is a (conceptually) necessary element for the precedent because otherwise there is no possibility of comparing the precedent to a subsequent case to be decided (Peczenik 1989, 334). In a single case, it is not at all easy to decide which elements are essen­tial to such a degree that they can be accepted as the elements of ratio. This depends, for instance, on the reasons adduced by the court in the decision as justifying reasons and with the belief that they actually are necessary justificatory reasons. However, the reasons may be estimated as necessary even if not adduced in the decision at issue (Eckhoff 1987, 143). In these complicated and varying situations is impor­tant to find “reflective equilibrium”, depending on the facts of the case, substantive norms applicable to the case, procedural rules, moral evaluations, etc. (Peczenik 1989, 335).

According to the Nordic legal systems, precedents in the narrow sense (sensu stricto) consist of all the substantial and public decisions of the Supreme Court. They have a weakly binding normative force. Precedents in the wide sense (sensu largo) consist of every decision that may have precedential value in the future court practice. In the Finnish system, these include cases that have not received appeal permission, and the decisions of Appellate Courts to which the appeal has not or could not be sought. These decisions are not strongly or weakly binding, but they can be used to support the reasoning as permitted sources of law (Aarnio 1991, 94).

Precedents in the proper sense of the term can only be discussed inside the judiciary. The reason for this is simple. A precedent only has value as regulative information in terms of the highest instance itself or in relation to lower instances. A precedent only directs the future adjudication. Of course, precedents have value outside the judiciary as well. DSL uses precedents as “weakly binding” arguments when providing reasons for an interpretation that is expected to be accepted by the judiciary. Attorneys use precedents as “predictions” of how a given matter will be solved or in deciding whether an action should be filed.

The Finnish system of precedents, as well as the Continental systems in gen­eral, is based on an idea about prospective regulative information (Aarnio 1991, 88). The highest instance aims to (consciously) affect the future administration of justice. The Retrospective dimension in the American style, in which the deciding instance always tries to find legal instructions from earlier decisions, is foreign to the Continental doctrine of precedent.