THE DOCTRINE OF STARE DECISIS AND THE SUPREME COURT OF THE PHILIPPI NE

ISLANDS

B.II EtlfILIANO LAZARO \' MINA "

r. DEFINITION AND DISTINCTION

A. Definition

I think it highly imporlanl" in a science so vast and intri· cate as. the law, to employ terms in a flhtl l'p. illc i sin~, technical defin ition to pl'event confu~ion and bewilderment.

The phl'ase "Stare Decisis" from the Latin ve rb "sto" which means "to be quiet" and the word (lecisltm, "settled thing," if; a Latin maxim conveying t he idea of the policy of some coul1;s to abide by 0 1' adhere to decided case!;. It is t he abbl'e\' iated express ion of the Latin maxim "Stal'e DeeisiR et non quieta mo· vere" which means ';lo adhere to clecid'ed cases and not to di!'ltlll'b settled Quest ions." When a point 01' quest ion propel'i), decided in a pre\'ious case comes rlga i)) in litigation, it was deemed advi sable and more convenient to adopt the op inion and tourse of I'eal';oning of t he judge l'endel'inl~ the fOl'mer decision ,'

It is a maxim, meaning, to adhere to pl'ecedent5, and not to unsettled things which are established . ~

The doctrine, in general. i!'i to the eff,~ct that where a poin t has been once settled by decision it forms, a precedent which is not aftenvards to be departed from. "

B. Distil/ctio!!."!

Stare Decisis differs from Res Adjudicata. The former relates chiefly to law; the latter to facts.' The doctrine of reg adjudicata bean; upon parties, and others privy to the imme­diat.e parties, alld restrains them from liliU'ating anew such mat­teI'S as hm'e previously been drawn into contl'ovel's), between them 01' those representing them, and ha.\'"e been allthol'itatively decided by a competent COlll'to" One case can make up the doc· trine of res adjudicata; several ~se" that of stul'e deci~is. FOI'

• LL.B., Univ'!l"! it)' of the Philil'piu'!s. , Bouvier's L;l\\' Dictional'Y, p. 1028. ' COI'PUS Jul"is, Vol. 58, p. 1318.

Ruling CIl.!!(> Law, Vol. 7, II, 1000. 'Same v. Same 34 Mich, 21 1.

Packet Co. \' . Sickl.:s, 5 Wal lace G!l2.

TH~ DOCTRINE OF S TAH E DECI S IS ·lu5

unlike I'es adjudieat.a, which may I'efer to a single caUtie of action or defense determined by a final judgment,· stare dec i s i ~ I'efers to t.he law or the pl'illciple applied in the past and which may be controlling on future cases altho ~llch cases may al'ise f'1'om dif­ferent callse~ of action or defenses and involving di fferent pal'­ties.

Sta l'e Decisis also diffe]'s from Obiter Dictum. The latter j "l llot a decision 1" and therefore cannot in any way be the basis of st.a l·e decisi s which always connote a decision in aJI senses of the term. Obiter dicta are not controlling in decisions of the Supreme Court. - Where a question pas~es the court "sub si · lcncio", the case is not binding upon the court and will not pre­clude it from later passing upon its validity where the question is properly t'aisoo.o The reason for this is well stated by Ch ief Justice Marshall in these wOI'ds: " The question actually before lhe court is investigated with care, and considered in its full extent; other principles, which may serve to illustrate it, a r e co nsidered in their relation to the case decided, but their possible bearing ill all othE' I' CMes if' seldom completely investigated'." '" On the other hand, the rule is almost universal for the court:;; to udhel'e to the doctrinc of stare decisis. It .is an adjudicated qllef'ltion and the subject of its COITectness is a sealed book. "

Sbu'e Decisis may also be di stinguished fl'om jeopardy, In w; much as the plea of once in jeopardy is the res adjudicata of the criminul case,l~ it should possess the same distinctions which the doctl"ine of res adjudicata bea rs to stare decisis. The mean­ing of jeopardy is, that a party shall not be tl'ied a second time f!)l' the samE:' offense artel' he nas been once convicted or ac ­quitted of the offensc charged by the verdict of the jury and j udgment has passed lhereon for or against him. '1

n. ANALYSIS OF TilE DOCTIONE OF SnRE DEC ISIS

A. Sfalemn .. i uf the DOCt1·i,lR.

The rule of stare deci sis is the authority of judicial deci­",iOns as precedent. in s ubsequent litigations." The pl'inciple of

" " an ~~lcc t, Rt's Adjuflicuw. Vol. 1. !I. ~. 1 Wt.l\s, The Doetl' jill! of Res A<ljudicata &. Stur€< Deci sis. )1. 527 . ' Uy Po ,'. CoJlecto!" of Cu~tO!ll~, 34 Phil. 15:t " "" cGil'!" v. Hllnliltoll &. Abl'CU, 30 Phil. 568. ,. i\lBl"bul"), \'. i\hUJiSOIl, 2 Law Edition , (;0. " Seal" v. Mi tchell. 5 Cal. 4(13. " Alb".-t. Law (jf Criminal P r llccdUl'C, fl. 180. " Story 1111 the Constitu.tioll , 51h Edition, St!c. 17,:j7 . .. Suthcrlal1(l, Statu tory Constl'uciion, 2nd F.:d .• Vol. Z, 1'. 8D8.

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precedent is sometimes c~lled the doctrine of stare decisis. '" The doctrine is shortly th is: Th~\t a deci sion by a court of competent jtll' isdiction of a point of law lying so squarely in the pathway of judichli judgment that the ca1-ie could not be adjudged without deciding it, is not only binding upon the parties to t he cause in judgment but the point so decided. becomes, until it is l'eversea fII" overruled, evidence of what. the law is in like cases. which the cou rts are bound to follow, not only in cases precisely like the one which was (j rst determined but also in those. which, however different in their origin 01' special circumstances, stand, or are cons idered to ~ta l1d, upon the same principles. ' u After a legal principle has t hus been well settled, it becomes <l binding rule, to be applied in all case,:,; of II similar natu re. "

B. iVa/m'r (/lId COllct'pf of rhe Doctrill(>

The doctrine is not founded upon n mere \'Ute of practice, changeable at t he p!casu I'e of the courts, but upon the solid basis of justice, and vitally ::tnd essentially affects the rights and in­lerests of defendants. It is a ,oule applicable to all questions of law, whether declaring n pdnciple of common law or the con­st ruction of a stat.ute. A rleliberate deci sion on a point of law giYen in a case becomes authority in other like cases; it is then lhe highest ev i(lence of what the law is applicable to the subject: :t should be followed unlt:'~s ,'evc'osed Ly a superior court or changed by the legislature, lIllless the law was manifestly mis­understood or misapplied in the case decided: and even then, llftel' long adherence to that error, it ma ~r become fixed and in­capable of j ud icial cOlTection.'

It js a fundament: .. l law that a pl'ecedent must be a concIu­"ion, a decision in a cause; and not a proceSl> of reasoning, an illll st l'ation, 01' analogy .f. The member of a court often agree in a decision, but differ decided ly a~ to the reaSODS and prill­c-ipJes by which their minds have been led to a common conelu­~io n . If the major pn~ mise, which is the law of the case. may ce stated in several forms. and is stated diffe,'entiy by diJrerent memben; of the COlll't who join in the conclusion, t his diversity will impai,' the force of ]J,·ececlent. A judicial decision should be l'egal'(led as conclusive, not only on Ute points presented in

.. GambQa, Elementary Law, p. l:t " Ibid ., citing .Jud~e Ditk.n, pp. 1:1-1 L " WiJl i.~~un , Some TClldenciE:S in the Law, II. l~:). " Sutherland, Statutory CIJI\~tl·\ICtio!1, 2nd E:d .. Vol, .:!. pp. IWI:\·!I, •• WE:Jt~, T he Doctrine of Res Adjtldicata & Stare Decisis. p. 530.

THE DOCTR I NE OF STARE DECISIS 407

~rgumel1t and expressly decided . but also of every other propo­sition nece~sa l' il :v involved in I'eachi ng the condusion expressed. ~o

The rule is :;tare decisis, not stal'e opinioniblLS 0 1' even sta.n : ,esplm.:f'is . Opinions are not legaliy I'equin:d in most states llnd in these, a decision without an opinion may none the less be binding. The opinion may not logically lead to the decision at all. There may be other and better reasom~ for t he decision than those in the op inion. There may be sev'~ral and even con· h'adictOl'Y opinions. In all t hese situations. the decision is as "bindi ng" as it \vas before. Opinions have only a force ca ll ed authority which derive it from the personality and cha racter of the judge, from the standing of the t r ibu:nal, and from the inherent qualities of the opinion.~ '

C. GnnmdH of the A l6tho,,.ify of the D oott'ille

The operation of pl'ecedents is based on the legal presump­t ion of the correctness of jltd ic ial decisions. It is an application of the maxi m, Res jlldiCflta pro 'V lll'it(tie accipitu1·. A matter once formally decided is decided once 1'01' all. The cour ts will listen to no a llegation that they have been mistaken nOl' will they open fl. mattel' once litigated and determined. That which has been delivered in judgment must be t llk(!n for establi!\hed tJ'uth. For in all pI'obability it is true in fact, a nd even if not, it is expedient that it should be held as true none the less. When, the refore, 11 question has been judicially considered and ans\vel'ed, it must be answered in t he same way in all subse­quent cases in which the same questio n again nrises. Only thru this l'ule ca n that consistency of judicial decision be obtained, which ilt e!\sential to the administration of just.icc.'~ By thi s reliance in the la w is attained.~~

A precedent therefore, is a judicial decision which contains ill itself a principle. This underlying pri nciple is often termed the ,.r£lin cleride11di which alone has the force -of law as regards t.he wor ld at large.

D. I mpu'rt{t t)Cfl (unt Re{tHIJIlS oj Ihl' J)oct"'hlc

The policy of the doctri ne is Lo give uniformity, certainty. and stability to t he law ;111 (1 above all to afford the citizen n

.. Suthcdand, Stalutol'Y Const.ruction , 2nd Ed., Vo l. 2, pp. 908-9, " Max Rad in. 33 Califol'nia Law Review, Feb. 19<13 . .,. Sal mond. J urisprudence, 7th Edition, p. 198. ,. Halcomb ". Bonnell. 32 M ich . 8.

408 PHILIPPI N~ LAW J OU RNAL

pl'om pt and speedy a:dminLs ll'alion of justice. An absQlute dis­regat'd of thi ~ d octrine would nece~.'larily lead to chaos and con­fusion, a nd lea"c the law liS uncer tain and undevel oped at the (m el as well as in t he beginning.1 '

The legal ground on which this practice is now suppor ted is that long continued usage flll'!li ~hes a contemporaneolls COJ1-~· t ructioll which must pl'evail ovel' the mere techn ical import of wOrds. t '

Fo)" it i:; an establis hed 1'\I!e to abide by former precedellts, where t he !'lame points come again in li t igation: afl well as to keep the sc., le of justice even and ::;teady, and not liable to waver with every new judge's opin ion; as al so because the law in that ea.'iC being solemnl y declared and determined, what before Waf> unce rta in , ,mc\ pel'hap:; indifferent , has now become a perma­nent rule which is not in the bl'east. of an y subsequent judge to :llte,' 01' va)'y from acconting to his own private judgment, but acconling to th<' kn ow n laws and Cllstom s of the land,,; not de­legated to pronounce a new Jaw but to maintain and expound the old one ."" 1t s hould I'equil'e. ever.\" controlling considera­tiOlU; to induce any court to bre"k down H fo rmer decisi on, and Jay again the foundat ion>: of the law."' F or t hi s maxim is tI

fu ndament.al co ncept in the organization of evcr~' jlwal society.~"

E. CIM8e!) nj P1·ecede·ut.<;

PI'ececlents ma~' be declarator y. one which i ~ merely lhe ilJ)plication of an already exist ing rule of law ; or 3n ol"iginal precedenl, one which creates and applies a lIew nile. In the for mel' case, the l'u le iF- applied hecause it is already law; in the l:~tter case, it i " \:lw fo r the future beca use it is now applied. The legal authority of each is exactly the sa ll1 e. '~

Precedent~ are fll r t hel' di vis ible into authoritative and pt'.r­:<\Iush·e. These two classe" differ in I'especl of th e kind of in­ference which they exel'ci~e upon the fu t ure course of t he admin­i:'.U'ati on of ju:-\tice, An il lllh OJ· jlati ve precedent j i' one wh ich .Judges must foli o\\' rcgllrdJl!'i of their Lelie fs 01" cf!nvictiom; . 11 i$ bindi ng upon them anc! ext\udes thei r judicial di scretion. P(' l" -

... W l11iam v. Go,.ney, 1014 indiana , ~1'! 3 . • , Sutherland. Statutor), Construuion, 2nd Ed .. Vol. 2. p .• j!),! . .. Blackstone, Laws; of England , 4th Ed. , Vol. 1, pp_ 62-63. " H oga tt. v . Bingaman, 7 How (Miss) 569. ' Blar: k, Th .. Law of .J udgme nt, Vo!' 2, P. 599.

'" Salmond, J U)'i s pl"udunce, 7t h E di tion, pp. 18~-18!l.

THE DOCTRINE OF STARE DE:e IS IS

".uasj,'e, when the judges are under no obligation to follow, altho the~r may attach weight and merit to them as may be walTanted. fieneratly, decisions of s lIperio)' courts are authoritative; those of lower courts, merely persuasive.'"

Authoritative precedcnti; al'e of two kinds: either absolute or conditional. In the first case. the decision is unconditionally followed without Question however unreasonable or erroneous it ma~' be considered to be. It has a legal claim Lo implicit and unquestioning obedience. In the second case, the precedent po!"­;;esses merely conditional authority when the courls pOSs~f'.s It C~ I' ­

tain limited POWC I' of disregarding itY

F. Appficalim! olld Effect ()f the Doctri'le

The following rule", are generally l'ecog-nized for the appli­cation of precedents : (a) Each COllrt i>; bound by the ,dec.i,, ;oll of COllrt!< above it : (b) Any l'elevant judgment of any coun is :J

:-.tl'ong argument entitled to respectful consideration; (c) a judg­JIlent is authol'itative only all to its I'nfi() decidendi; (d) a pl'e, ('~dent is not abrogated by lapse of ti me: (e) Ancient precedent" are not. in practice, commonly applicable to modern cirCllm­~tances, These rules are practical and of sa lutary effect,'"

There is a distinction in the application of the principle 01

~iare decisis between question~ which concern practice OJ" thOM' rules of conduct which have a mere present importance, and those which affect the validity <tlld control the construction of c'ontracts 01' r ules of property, A;; to the former. legal preced­~lIts are fo llowed unless they are manifestly wrong, As to tl1c latter, they are followed with mOL'e persistenc,,,,~~

No absolute rule can be gh'en as to when stare decis is iii. imperative, so much (iepends on the particular case in which it nlay be invoked, It mll ::;t be said however, that COIIl'ts al'e not required in the exercise of thei r wide judicial 'd iscI"et lon, to over, turn principles which have been considered and acted upon as con ect, and thereby disturb contract", and property, and involv{' everything in inexplicable confusion . There al'e que"tion~ where ihe decision do not constitute a bUl'liness rule, and where a change would invalidate no business transactions conducted upon the faith of the adjudication. As an iIIush'atlon, lake a Cl.l .-;e in-, volving pel'sonal liberty: a pHrt~' I'e~trained of his liberty claim,«

~ Ibid., p, HIt. ' Ibid., p. 192 .

... Allen, Law in the "'lak ing, 2nu Edition, p. 20~1 .

.. Sl.Ith(,I·land, Stlltutot'y COII!,Ll'u~til>n, 2nd Ed., Vol. ::! p. 8fl9.

PHILIPPINE LAW JO URNA L

to be discha L'ged under some constitutional provision; the court erroneously decides again~t him ; the same question arises again, To change such a decision would destroy no rights acquired in the past; it would only give bette I' protection in the future , The I'tlaxim in such a case would be entitled to but very little weight. :md mere regard for stabilit.y ought not to be allowed to prevent a morc perfect administration of justice. But when a decision relates to certain modes of doing bllsinei'ls, which business enters lal'gely into the transactions of the people, and a change of de­cision must necessari ly invalioate everything done in the mode pl'escl'ibed by the first, then, when a decision has once been made and acted upon for an,Y considel'able length of time, the maxim becomes imperative, and no court is at liberty to chunge,Jt They are rules of property on which t he repose of tne country depends; titles acquired under the pl'oceedings of courts of com· petent jurisdiction must be deemed inviolable in collateral action or none can knOw what i:, his own.·" From thence, it is the sacred duty of a court to adhere to such decisions on property unless there are the most convincing and overwhelming reasons for overruling them.3c That judge who, from petty vanity, a nd fo r the sake of showing himself more wise and learned than his predecessors. would overturn a rule , .... hich for years had settled t he rights of property should be regarded as t he com m Oll enemy of mankind, and l unworthy of the high trust that had been con· fided to him ,31 There would be no reliance where precedents would be nothing more than a precarious temporary security."

C, Limit«tiOllS of the /Joct1'ill€

The doctrine of stare decisis is not altogether absolute (\1' inflexible, In some instances it can be set aside. But even ;n such cases the subsequent judges do not pretend to make a new law, but to vindicate the old olle from misrepresentation. For if it be found that the fOI'mer decision is manifestly absurd or unjust. it is declared, not that such a statement was a bad la w, but tha t what is not reason is not law. In that case, the inter­pretation becomes the spi rit of the old 18\\,.1" In order that Ii.

court is justified in di sregal'ding a conditionally author,itative

... Sutherland, St.at.uto l·Y Constl'uction , 2nd ~:(l.. VII!. 2, 1111. 102·3. ~ Grignon 's LeSSL't' v. Astor, 2 Howal·d ~ -I 3. ~ Lindsay v. Li ndsny, ..\7 Indiana 286.

WE' lch v, Sullivun, 8 Cal. J88. A Hibu V. COlll'US, 81 C:II. 402 . .. Blackstone, Laws of Enit lund, -Ilh Ed iti(!n , VoJ. 1, p. 1)2.

THE DOCTRINE OF STAR E DECISIS

pl'ecedent, two conditions must be fulfilled, In the first place. the decision must be a wmng decision, that is, contrary to law. when there is already in existence an established rille of law on the point in question, and the decision fails to conform to ·it. In the second place, the decision must be a wrong decision, that is, wrong being contrary to reason. When there is no settled law to declare and follow, the courts may make law fOl' the occasion, and in so doing, it is their duty to follow reason, and so far as they fail to do 80, their decisions are wr ong, and the princi­ples involved in them are defective authority. Unreasonable ness ia one of the vice:; of a precedent no less than of a custom and of certain fOI'ms of subordinate legislation,H

Authori ties agree that there are indeed good reasons why the doctrine of stare decisis should not be so rigidly applied t:o the constitutional a!l to othel' laws, In cases of purely private import, the chief desideratum is that the law I'emain certain, and, therefore, where ;1 l'Ule nas been judicially decla l'ed and private l'ights created thereunder, the courts will not, €.xcept in the clearest case!) of enol', depart from the doctri ne of stare deci sis, 'Vhen, however, public interests are involved. and espe~ tially when the question is one of constitutional construction, t he matter is otherwise," In the formel' case, mis takes may be conected either by the higher COUlt 01' by legislation, while in j'he latter case there ii' no method of cOl'I'ection available except thyu the ovel'l'uling of a misUlken decision and judgment,' ~ in aJl cases, a departure from constitutional interpretat,ions must be with grave j'easong,'" However, there are two iP'ounds of Justification in departing from even a single decision which has become a general nile of propel'ty, namely; (a) the nece"sity of preventing continued injustice; and (b) the necessity of vin~ dicating clear and obvious principles of law,·' And so, even if a rule of property is established by a series of decisions, result­ing, however, in a dangel'ouS precedent of monopoly, and in effect setting aside a wholesome provision in the constitut ion designed to i5uppress sLlch abuse of the rights of j)I'operty, the rule thus established, may properly be abrogated, by ovelTulillg the decisions under which it gl'ew LIP to so dangerous , and over-

.. Salmond, Jm'ispl'udencc, 7th Edition, pp, lfl3-1!l-l, " WillOughby, Constitutional La w, p, 52, , " l'Iiatth('ws, The Amel'ican Cons titutional System , p, 15~. " Black, Constitutional L aw, p, 81, 3rd Edition, " l. ion v, Burtis!!, 20 J ohns 487,

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whelming an influence in contravention of public policy,'" ~o

also, any error may be con ected when no substantial in jUl1' is to be expected! from the change, or when the evi ls of adherence are manifestly gre,ater than those of departm'e, 1 n this case, the consideration is the e \'entual result-s,'"

Anot her limitation should nlso be born in mind, The doc­trine of stare decisis, is only applicable, in its full force, within the tenilol'ial jurisdiction of the courts making the decision. :-ince t here alone can such dec isions be "egarded as having esrab­iished any rules. Rulings made llllder a similar legal systE>m t'lsewhere may be cited and respecter! fa ,' their reasons. but al'e not necessarily to be accepted as guides . except in so far as those reasons commend themseh-es to the judicial mind. Great Bri· tain and the thir teen sta tes had each substantially the same sys­tem of comnwll Jaw origi nally. and a decision now by Olle of the ". igher courts of Great Britain as to what the common law is upon every point is cel'taitlly entiUed to great \'especl in any of the states, though not necessal'i ly to be accepted m; hinding fluthori ty any more than the deci~ion in anyone of the other states upon the same pointy

H , C/'itici,~n1-'; on Ihe J)fJcll'ine

Some of the ob,jections put forth by cl'itics against the ap­plication of the doctrine of ~t<\re decisis are:

Firstly, case law is law made by judges and not b}' the peo­ple. It shou1d be noticed, however . t.hat in all constitutions of all modern states, provisions exist. ass uring t.he impartiality ann integl"ity of t he judges on pain of removal. The judge must consider the requirements of fai r dealing, even at the expense of popular disapproval. Altho the fact remains that case Ja\\" is the product of judges and not by the people, yet it is not so much a defect but a characteristic of it.~·

Secondly. case law cannot refOl'm t he law by abolition of unwanted ,·u les. It can on ly add an increasing number of ex· cept!ons to ex iE;ting rules, thus increasing the com pl e..xity of a lega l system,

Thirdly. as Bentham objected, case law is "dog law" ill that the infringer of rule only becomes consciolls of his errOl" aftel'

.. San Fl"anc.isco \' . S. V. W, W, 48, Cal. 509, "' Well!;. The Doc~dne of Rell Adjudicata &- Stal"(" D~t·i~i.~ , p, 576. "Cooley, Constitutional Limitations, 7th Ed" II. 85, " Keelon. Elem, Principles of J ul"ispl"udenet!, Jlp. 68-69.

T H E DOCTRINE OF STARE DECIS IS

the infringement has t a.ken place. and so, in some cases at least he would enjo~' no (lpporlllnity whatever of avoiding wrong , doing, ,~

Lastly, it should be noticed that not everything contained in a judicial decision is in strictne!:s a binding ~ource of law, but only so much as is necessary for the formation of a decision by t he judge upon the facts before hm. ~'o

COtll't~ h!\ve been restive under the angry criticism to which lhey have been s lIbjeded and' have J'eacted in one of th ree ways : either by defiantly maintaint ing stare decis is, by painfully I'a~ tionalizing it, or by boldly rejecting it. It often happens, furth~ er, that the defiant maintenance and bold reject ion al'e both merely SC I'ee lli' behind which COL1rts in fact <1'0 the opposite of what they decla re,~!

HI. STATUS OF T HE DOCTRINE OF STA Rt: DECISIS IN

VAR IOUS JURISDICTION

A. ROllHtn J uri.'{J)/-ude1IcI'

Tn the Roman sy:;tem, precedents most cel·tain ly were not binding until the t ime of Augustus , but the righlusually known :IS j11.,) l'eRp011(le1urf. confcned upon certain eminent jl11'jsts. seems to have made the precedents embodying their replieR bind­illg. Justi ni an h imself expressly forbade any "inter pretation" or hi s legislation , judicial 01' otherwise, and altho this I'egu la~

Hon proved im possible in practice, precedents were never regard~ t:d as binding und'er the Jater Empire. :'~

B. SOI/lf'l Conl,i, /(, jIf,,", hlri.slJ1'IU/(,IICC

I n Ger ma ny. during the l\ l iddle Ages, there was con1'ider· .. ble de\'e!opment of ca1'C law, but t.his :"ouree. in more recent times; ha R been allowed 10 fall largely out of usc. Tn Fnlllce, judicin) decision>, al'e not regarded a !> binding; t he Civil Code express ly forbids the use of pl'ecedents , the idea in thi" case being obviou!ily the l'iame a.'i Justinian's-thl.\t the code should be the sole authori tative source of )aw:'~ The codes of P r ussia <lnd AnstI'ia expl'esi<ly pruvide that judgment shall not have t he fc; rce of law. Altho the codes of Ital~' and Belgium are si lent

" Ibid .. p. 69 . .. Ibid., p. 69.

"lax Radin, California Law Review, Feb, 1933, .. Keeton, Elem. Prin. of Jurispruden<:e. p. 66.

Ibi!., p, 66,

PHILIPPINE LAW JO URNA L

on the point. their tendency is that pl'eviolis decis ions are in~ :;iructive but not allthorit"ltive. "

Spain does not seem to adhere to stare decisis. Before J312, the function of the jud ic iHl'Y was to apply the plain words llf t he law to cases pl'esented before them, The judges \Ve r'e fC01'bidden to, give opinions and in case.'; of doubtful nature they were to consu lt the king who will settle t he matte r once for all.$S But by the enactment of the Constitution of 1812, the Spanish courts were reorgan ized and t he Supreme Cou r t was given the power to review by means of the "l'ecli l'so de l1ulidad" a ll cases, civi l and c riminal. decided by infer ior courts. But this practice wa:. abolished hy t he Ro.val Decree of J une 23. 1778, Later, the practice of re\'iew W H S aga in revived by t he "Enjui­t'lamiento Mc.I'cantil" wh ich required the mel'cantil tribunals to lllsel't in their decisions the ground:! whether of law 01' fac t upon which their detel'minations were based. Th is pract,ice was fol. lowed by the other court~ of the kingdom by vir t ue of the Royal Decree of November 4, 1838. Then came the "Ley de Enjuicia. miento" of 1856 which provided among other things that all deci · l'\ ion~ handed down by all court s s hall distinctly state the grounds upon which t.hey are based. and t hat all such decisions mU f:.t be published in t.he "Gazeta de IHadl'id" . III spite of this legal prO­\'i~ion the judges contin ued t.o decide cases according to the pe­culiarities and ci rcumstances without turning back to what had been (lecided before: lawyers did l not til1d read y and practical help from what were published in t he gazette and for that rea· son the de\'elopment of the law of precedent \\'a~ retarded,

This historical account point s pla inly to the fact that nO J'orcc was given to pl'e\' iotl" decisions as guiding precedents in Spain. And this is best proved by c iting Al1.icle 6 of lhe Spanish Civil Code which m'l kes n o mention of judicial decisions ;):< one of the sou rces of law and therefore t he con trolling facto]' III the di sposition of a case, This omission prompted the learned commentator, Sanchez Roman t o comment that "thel'e ill :'111 ap­pa rent lack of logic in the draft ing" of t ht! Spanish Civil Code.~~

This is to be expected becau~e Spanish jlll'ispl'uclence is based upon the Civil Law of Rome which disregards previous deci · ;: iolls COl' present adjud ications.

~. Holland, Ju risprudence, pp. 68-69. ·· Ordenan7.8 de Alcala, Book I, Title 28 . ... Sanchez Roman, Treatise on the Civil Code, Vol. 2, ' p. c7~,

TtlF. DOCTR INE OF STARE DECISIS

C, E110lish htri.'{l)1'{ule-nce

The hi story of the Common Law reven[s that in enriy times the pl'acticE' of deciding ca,o:es by precedents was unknown to the English judges, Later, howeyel', fo r reasons of convenience and expediency, they allowed litigant!:; to cite c.a:;es in court to l1upport theil' l'espcctive claims, This pl'actice began during the reign of Edward I altho the decisions were :;tated by Lord Hale to be "less than law, though greater evidence thereof than the opinion of any private person." W Bracton'8 use of cases is by Way of illustration merely; the Yearbooks collect togethel' cases (01' reference and study because they wel'e .intel'esting. By the seventeenth century, anel at the time of Coke, precedents have become fu lJ y binding. The era of Lord Mansfield with hi s spe· cially tmined juries may be said to mark the Gold~n Age of English Case Law. At this per iod, pl'ece(l ent is indubitably the most importaut ~OUl'ce of English law, At the present time, precedents are aR fu!),\' binding as at any period in their his­tory. but their importance aR a source of law has been consider· ably diminished! thru the enormous increase of legislation,~~

But while this iR truc, courts remain tied to t he rule of pre­cedents.

D. Ame1'iculI Jurispl'udence.

The policy of the ear ly American cOllrts with regard to previous decision was the same as t.hat of the Bl'itish courts at. that time andl was followcd without qualification fo r -yea r s ann :vears du ri ng the English sovereignty over the American colo­nies, However, the declaration of independence of the colonies marked a completely new era in American jurisprudence, Since t hen, thel'c .o,;eem to be a tendency in American courts to deviate from the "iew;.: of Briti sh courts and had relaxed the doctrine of stare deci sis. On this point, Chief Justice Marshall sa id: ';The inter pretation of British statutes adopted in the States are not with absolute authority , lf the British courts vary thei r constl'uctiol1 of a statute which is common to both coun· tries, we do not hold ourselves bound to flu ctuate with lhem." ;,~

Decisions of the United Sbltes Supreme Court as to ques· tions which al'e federal in natur e are bindillg upon all courts in the United States, wllethel' Jedel'al or state COUl'ts., But in cases not aris.ing from the construction of the constitution, laws,

" Holland, Jurisprudence, p. 69 . •• Keeton, EJem. Prin. of J urisprud£'nce, Pr>o G6·67, ,. CBtheal1. V. Robin ~on, 5 Pet . 280.

416 PH/L1PPI:-':E LAW JuURNAL

.tne! treat.ie,. of the tederal government, the decis ion . ., of till' Sup,-eme Court of the L-nited State~ fire not bindi ng upon the supl'('me courtR qf the :<everaJ States of the Union as prece­dcnts,"" The l'ule in courts of coordinate jurisdiction consti lutint-! IJtlt it i'.ingle Ry:< tcm ji'. !h:it a decision in one sha\! be can lroiling in the other, until l'eyer:<ed b.\' the appellate court. I

Without the aiel nf th l~ federal constitution <ind the iegi!51atioll of ('ungl'cs!':, n?gl1l<iting the interstate eHed (,I' lJublic acts, ,'e­cor ds. I'l.nd ,1udicial proceedinJ,t;;, the judgment' and decrees of each Stille would be regarded a" for eign judgments in the COUl't::;

of e"pr.\' other :;tale and their effect would have to bf' deter­mined by the pl·inciples of international la\\-. by lhe preponder­'Ulc€' of judicial npinions, al' by :-such other cOIl15ider:.lt.iOll a !; al'e

infiuenl hll in fixing the s tatui'. of judicial rccor ds brought from foreign land:-. ·J But decision:,; of Slate ,:upreme COlll't:; are binding lIjlOll inferior courts of t he sa me State.'"

IV, STAr:!!: DECISIS !~ P HIl.!I' PI:o.JE ,rURI~/,RllOENCE

A. Lf'~J,d S!II tl',o of the Ph ililmiul!.,<

_\ ... wa':! "<tOlLed by J u.:; tite ~ralC'olm: There is in the Philip­pine lsland:-; a unique legal :'i.\':-tem, ill which the two great :-:,treams of the law t he civil . the legacy of Rome to Spain, com­ilJg from the West. and the common, the inheritance of lhe Cnited Slate" from Great Britain, applied by American writ­ten la\\'.~. coming' fl'om the Ea:-:I have met and b lended_'"

Our civil I;{\\' i!'l mo:<tl...- of ~pani~h ol'igin: QlIt' pl'ocedllral la\\,:-; aI'€' altogether American, I n the interpl'etati on of the:.:c la\\-s we re;;;urt to theil' :>ulI l'ce (d Origill and adopt ~i lllilar i[ not ab.'O(lhltel.\' identical construction . For it i:'1 n general rule thnt whel e :.! Sta te adopt,. a "tatulr d a nothe r State:; , it adopt .. ;11:::0 the cunsu'uction placed nil l!l:tt ::latute by the ClJlll'i ,;; of the Slates, be('<:llse it is r cgnnled a~ 11 conc1l1:; i\-e pl't''''t1mption thaT the legi.:;iatllr€. in pa"Rin~ the act, knew what con.';tl'llCtion had Itt'ell placed UlJon it by the court,.; of the State whf't1ce it \Va." horrowed:' 'l'hu~, OUl' ('mllt~ al'~ hound by the !'uling . ..;; of the StlJH'eme COUl't o f the Ullited State:; in C(Ill!'ll'uing and applying :-;tatut.Ol-Y ellnct.mell t$ m()delled upon ur l;ol' l'uwed from Engli sh

,., Be!ehl~I' ". ChamiKol's :,;j Cal. 1;;15 . • ~1I:i\hllT8y " . G(H'I'cy lOG Fet!' 11.

... Tay/oJ' v, B>l l'l'"n, li4 A!!l{'Ylcan DcCil'IOll:;; 28L "" Wiggin!! Pen's C .... '-. Chic:n((, Rd. ('0" ] J Fer!. :UH . .. Guml)oll , Ek'ml,nt:u'y Law, II. :l2. citing .Justice i\Iuk ... lm. '" Berni" v. n .ehe,·, I l{un~os, 2018,

THE DOCTlHNE: OF S T.\HJ.; DEnS1S 117

an d American or iginal:;.' " That a doctrine establit;hed b)' Amer­if'an .Jurisprudence, not cont\'adicted b~ .. Spani~h J lIl'i:<,pruc\el\c~,

will be accepted h,v the Supreme Cuu!'C"" And abo, in the ah· :::~ nce of local la\\', the deei~iotl 01' the Supreme Cou r t of the l 'nited States based upon general principle" of commercial IttW

il.re binding upon the Supr eme Court of the Philippine Tsht nd s,'" Wit h thi s state. of ou r legal ;.;y!'lem where two di ffe rent

jul'ispl'udence al'e equall y cont]'olling, it i ~ difficult to make a general conclusion as t(1 what is the !'>tatll,:: of the doctrine of £, tal'e decis i ::; in OUI' iUl'i::;dictlOn. Before ventul'ing fo!' an an­S\\'e ]', it will be advisable to ]'e\-]ew the few cases on sta]'C rle_ !'isis decided by OUI' ;.;upl'eme CC!II't. Afte)' that. th p reade)' ,;ha ll , I hope, have 1'1. better ;md more plHlI,;ihle ]'cve!ation than mine, as to the attitude u1 ou r Supreme Court with respect to the doetl'ine now under CO!lsid('ration,

B. S()11/1' Philippi., f' C".<;c Oil Stal'e Decisis

( a) f{ IU'1U:r(! , Stll',,1 & Cn . t', lllli/J/m (',,/leel m' of ('IIHtIlO/lo.;_

12 Phil. J7,-T he pla intiff,; imported cel'hlin cotton gnocj:.: in these Isla nd",; in 1906 upon which the Co\lcctOl' of Customs im­posed a dll ty of 18 "i- pel' ki lo accol'ding to Article 11 7 of the ;.a l'iff laws, pIll ::' <. SlIl'tax of 30'r, The plaintiff cOlltendecl that the sm'tax could not be legally imposed upon hi~ goodi'i be­e,llse thai part of Article 117 pro\-jcling for all additional sur­tax, ]'efers to texti!e~ stamped, pr;nted, 01' manufactu rcd with d,ved yam a nd not to textilf'S wh ich al'e plain and wilhout nj[U)' es, The defendant. 011 the othcThand contende(1 thnt the contr al'Y interpretation was followed sine!! :\o\'. 12, ]901 and l ilerefol'e ought not to be dep~\lle~ fl'C'm , Thc cc ntention flf thf' plnintiff did not prosper in th e Court of First Instance and sO

he appealed but the Supreme COllrt HLl~tained the vic\\' of th e· ;uwer, saying: "It i::; a I'lile es-tablished in the interpl'etation (If' Custom laws that when:' the re ha:- been a long acquie.5CellCe ill a regulation by which the right of part ie" 1'0]' yen I'" have he:>!1 riete l'm ined and <ldjusted, !"ur:h intel'pretatiml ~hoLlld be followed in the a bsence of the mo~t cogent nnd pCI'l'>ual'>ive ! 'CafHHl;;; to thl? contrary. "

(b) J1ollf(l))O C, 1I/,'>1I/tl) (;(1/"/ .. l.! Phil. ,' .:i'4.-This ca"r cHllcd fo r the construction of an Act of Congl'eils regardi ng till::

... Cuyugan v. Sant(ls, 34 Phil. WO, • Aldez \'. Gay, 7 Phil. 268 . ... Bt'~'a ll, Loudon Co, v. Amel'icHn BUllk, 7 Phil. 255,

rHIL IPPI NF. LAW .JOURNAL

so·called "Manglares" in the Phi1ippine~. The Supreme Court ~ave t he following construction: "Under the uncel·tain 311d

somewhat unsatisfactory cond ition of the law, the custom had grow n up of converting "Mangla"es" and nipa lands into fishe­ries which became a common feature of settlements a long the coast and at the same time of the change of sovereignty consti­tuted one of the most productive industries of the Islands, the abrogation of which custom. would destroy vested rights and cause a public disaster. 1n our opinion it was the object of Congress not to work such a result, but on the contrary, in fur­therance of t he pUl'po~es of the Treaty of Paris to recognize l!nd safeguard such p"()pe ,'ty."

(c) McGilT 1' . H(J tJ~i(lol/. 30 Phil. 568.-This was a case ;n which the const itutionality of Act 1627 of the Ph ilippine leg­islatul'e was jnvol\'ed. This Act was previouslr applied and followed by the Supreme COUl't itself, but its illegality was never raised before. The Supreme Court disrega rding aU pre­vious decis ioll l':' declared tbe Act to be unconstitutional because it said, that t he question of' constitutionality was passed Hsub silencio".

(d) In the M atf.c·r fit tll(' Involwd(l1"!1 hmo/veney of Rafael /-'(')'/wndez, G. R. No . . 'J8398.-The issue in this case is whether or not the claims of 1 he Philippine Trllst Company and Smith. Rell and Company, Ltd .. in its capacity a~ trustee of the pro­pertie::: of t he San Ni co\:.li' iron Works, Ltd. , pl'esented in the In­voluntary insolvency proecedings of Rafael Fernandez, should be ci<lssifi(!d as OI'dilulI'Y or prefcn·ed. A resolution of the is­!me in tUI'Il depends on an an~wel' to the question of whether or 1I0t claims not classified a" pn~fel'l'ed under the Insolvency Law, gclin a specia l right of priority unde ,· t he Civil Code. Th is ques­Lion has all'end.\' been decided in a fOl'mer case. Involuntal'Y In.solvency of Mariano Vehl~("o & Co., 1930, XXIX O. G. 2868, \vhei'e it wa~ held that the p,'eiel'entilli l'ight of the civil law shou ld be trcatcd ag approximately equivalent to the lien of the I llsol"ene~' Lnw :mel that the :>taf.utory pI'eferenccs furnished bl.' the Civil C/Jdc were not dcstroyed by the Imiolvency Law. I ~ spite of the decision in lhat Vela..;co ca)o;e, the Supreme Court in the p"csent case disl'egal'Cied it, holding that claims not clas­;.;ifierl as pl'eferred uncleI' the Insolvency Law cannot be thus classified with the aid of the Civil Code and gain no special right of priority under the Insolvency Law which is exclusively t'ontl'olling.

'rUE DOCTR INE OF' STARE DECl Sls -'11\)

The Court stated fu r ther: "Is the Court with new membet'· ship compelled to follow blindly the doctrine of the Velasco case? The rule of stare decisis is entitled to respect. Stabil­ity in t he law, pl1rticularly in the business field, js desirable. But .idolatrous reverence for precedent, simply as pJ'ecedent. no longer ru les, More important t han anything else is that the court should be right. And particularly is it not wise to sub­OJ'dinate legal t'eaSOll to case law uno by so doing perpetuate eITOI' when it is brought to mind that the views now expressed conform in principle to the original and' that since the first de· cision to t he contrary was set forth there has existed a respect­able opinion of non-conformity in the Court. Tndeed, on at least on one occasion has the court bt'oken away f rom t he l'C­

\-amped doctrine, while even in the last case.in point t he COU l't was as evenly divided as it was possible to be andl still reach a decision," (Pel' lVlalcolm, with J ustices Santos , Hull, Vickers, Butte, nnd Diaz concurring, Justices Imperial, Villa-Real, alld AVanceiia, dissented fl'om the dec ision),

V, CONCLUSION AND SUGGESTION

The doctrine of stare decis is is the authority of judicini de­cisions as precedents in subsequent litigations. To afford to the citi zen a sound administration of justice is the just.ification of its existence, Ce l-tainly, stability , and symmetry in any sys­tem of jurisprudence al'e the necessary resu lts of its applica­tion, But the rule is not inflexible; it may be di sregarded when the evils of adherence are manifestly greater than those of de" partu re, Thus, d'ecisiolls on constitutional question are more liable to changes than decisions on property rights.

Common taw countrie~ have venerated the doctrine; civilluw countr ies have shown disrespect fOJ' it, In Philippine jurispru­dence, t he status of the doctrine of stare decisis is uncertain . Our Supl'eme COLlrt had applied the doctr ine in the paRt altho recent cases ha ve been decided in the contnll'Y,

The writer suggests that om' hi gh tribunal set certain fixed ldndmarks .in t heil' decisions, approaching correctness, though not per fection, of com'Re for the determination af.\ to when the doctrine of stare decisis should appl y. A provision in t he con­stitution h; not necessary , But a cO ll sistellt and well · defined attitude on the part of the court is indispensable,