Justifying consistency in law
How does one justify the need for consistency? There are two fundamentally different answers to that question.
The first kind of answer, the kind most frequently given, has to do with ends justifying means. Those giving this explanation for the need for consistency (and equally for the doctrine of precedent) contend that the sacrifice of justice the doctrine may entail in an occasional case is justified by the justice-promoting interests the practice serves more generally.
Such justifications include the notions that the rule allows for advantageous predictability in the ordering of private conduct, that it promotes the necessary perception that law is stable and relatively unchanging, that it prevents frustration of private expectations, that it serves the resource-saving goal of judicial efficiency, and even that it preserves the separation of powers by enforcing judicial restraint.
All of these explanations acknowledge, usually explicitly, that consistency sometimes requires perpetuating erroneous decisions. The assertion here is that specific instances of what otherwise would be injustice may be tolerated in the interest of justice more generally.
But there is a second, fundamentally different sort of explanation of the need for consistency that finds support in the cases and in the literature. Courts and commentators sometimes have attempted to justify this by claiming that a rule of consistency is itself an intrinsic good.
While the first theory assigns value to that doctrine only to the extent that it serves the interests of justice in the long run, the alternative theory asserts that the value of adjudicative consistency is inherent and therefore unaffected by whether it results in justice. Adjudicative consistency is a good in itself, and although it might in some cases be outweighed by opposing intrinsic goods, it is always entitled to be weighed against those opposing goods.
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. It must be recognised that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. Indeed, the very concept of the rule of law requires such continuity over time that a respect for precedent is, by definition, indispensable. At the other extreme, a different necessity would make itself felt if, eg., a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Justice may be sacrificed in the occasional individual case so that these goals may be furthered and, consequently, justice may be done more generally. At the same time it has to be acknowledged that consistency and adherence to precedents must have its limits.
When a prior decision is "seen so clearly as error that its enforcement [is] for that very reason doomed" the goals of efficiency and the rule of law are outweighed by the practical drawbacks of attempting to enforce a clearly erroneous decision.
Consistency can be conceived of as a tool to accomplish certain specific goals, goals that in turn are necessary ingredients of "the rule of law", generally and consistently applied. But sometimes the tool malfunctions; sometimes consistency frustrates the goals it was designed to serve, or serves ill ends that outweigh its worthy ones. The cry for consistency is not an inexorable command and we must weigh its benefits against its burdens.
How does one justify the need for consistency? There are two fundamentally different answers to that question.
The first kind of answer, the kind most frequently given, has to do with ends justifying means. Those giving this explanation for the need for consistency (and equally for the doctrine of precedent) contend that the sacrifice of justice the doctrine may entail in an occasional case is justified by the justice-promoting interests the practice serves more generally.
Such justifications include the notions that the rule allows for advantageous predictability in the ordering of private conduct, that it promotes the necessary perception that law is stable and relatively unchanging, that it prevents frustration of private expectations, that it serves the resource-saving goal of judicial efficiency, and even that it preserves the separation of powers by enforcing judicial restraint.
All of these explanations acknowledge, usually explicitly, that consistency sometimes requires perpetuating erroneous decisions. The assertion here is that specific instances of what otherwise would be injustice may be tolerated in the interest of justice more generally.
But there is a second, fundamentally different sort of explanation of the need for consistency that finds support in the cases and in the literature. Courts and commentators sometimes have attempted to justify this by claiming that a rule of consistency is itself an intrinsic good.
While the first theory assigns value to that doctrine only to the extent that it serves the interests of justice in the long run, the alternative theory asserts that the value of adjudicative consistency is inherent and therefore unaffected by whether it results in justice. Adjudicative consistency is a good in itself, and although it might in some cases be outweighed by opposing intrinsic goods, it is always entitled to be weighed against those opposing goods.
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. It must be recognised that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. Indeed, the very concept of the rule of law requires such continuity over time that a respect for precedent is, by definition, indispensable. At the other extreme, a different necessity would make itself felt if, eg., a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.
Justice may be sacrificed in the occasional individual case so that these goals may be furthered and, consequently, justice may be done more generally. At the same time it has to be acknowledged that consistency and adherence to precedents must have its limits.
When a prior decision is "seen so clearly as error that its enforcement [is] for that very reason doomed" the goals of efficiency and the rule of law are outweighed by the practical drawbacks of attempting to enforce a clearly erroneous decision.
Consistency can be conceived of as a tool to accomplish certain specific goals, goals that in turn are necessary ingredients of "the rule of law", generally and consistently applied. But sometimes the tool malfunctions; sometimes consistency frustrates the goals it was designed to serve, or serves ill ends that outweigh its worthy ones. The cry for consistency is not an inexorable command and we must weigh its benefits against its burdens.
Failure of consistency as equality
Theories of adjudicative consistency as equality hold that courts must adhere to precedent because the norm of equality of treating similarly situated people similarly demands it. The force of precedent, and hence the need for consistency, can at least in part be traced to a concern for equality. Indeed, courts have purported to enshrine what is called "the equality principle" the perceived necessity of treating "similarly situated litigants . . . the same" as a foundation of adjudicative consistency.
Whether courts should be taken seriously when they purport to rely on equality in following precedent is difficult to tell. 'Equality' is precisely the sort of evocative buzzword to which one might suspect courts would turn in justifying otherwise unpopular decisions.
But whether courts, in speaking of 'equality' to explain stare decisis , envision the concept as an honest ideal or whether they merely use it as a crutch as a strategic excuse to follow precedent they secretly want to follow the result is the same.
In resorting (sincerely or not) to the vague and happy idea 'equality', courts neglect (or reject) the important and often difficult task of examining the many pragmatic considerations that might play into the question of whether to follow precedent in a given case.
Courts that believe they are constrained by equality to adhere to precedent or that they can get away with professing to be so constrained need not, and undoubtedly do not, engage in the kind of rational analysis of the value of stare decisis that a just decision requires.
Evolution of law as integrity
As applied to adjudication, law as integrity requires the judge, prosecutor and lawyer to view the entire body of existing legal decisions within a jurisdiction its statutes, its case law, and presumably its administrative rules and decisions as a whole.
They must interpret this entire body of law in its most coherent light; they then must extract from this coherent or nearly coherent system the principles it produces that apply to the case then being handled. They, all three participants, must, "so far as this is possible, . . . treat the existing system of public standards as expressing and respecting a coherent set of principles, and, to that end, . . . interpret these standards to find implicit standards between and beneath the explicit ones."
"Law as integrity" assigns a vital role to adjudicative consistency. A number of sensible-sounding reasons can be advanced why we should strive to be consistent from case to case. The protection of reliance interests, the need for certainty and predictability in the law, the goal of judicial efficiency, the promotion of confidence in something called "the rule of law", the imposition of constraints on judicial lawmaking the list is a familiar one to any lawyer.
What is important in adjudicative consistency is reaching the right result the just result, all things considered. If part of the 'just result' is protection of reasonable expectations or establishment of a stable rule or preservation of judicial resources, so be it; consistency may serve the ends of justice.
But equally we must rid ourselves of the habit of thinking that adjudicative consistency holds some inherent value tugging us away from what is just. We must adopt an approach that is prudent and pragmatic; we must display a sceptical willingness to immerse that doctrine in the exacting crucible of justice.
This is not to say that the bitter pill of bad precedent should never be swallowed. Sometimes the general injustice flowing from inconsistency will outweigh the particular injustice of a result that would, standing alone, be indefensible.
In commercial law, for instance where lawyers structure transactions on the promise of steady doctrine frequent rejection of precedent would engender chaos. In other areas of the law with high visibility e.g. free speech and equal protection slapdash application of supposedly immutable constitutional provisions would undermine public confidence in the courts. In statutory interpretation fragmented case law would frustrate the very purpose of having a statute in the first place.
Tomorrow: The Zainur/Anwar saga
MANJEET SINGH DHILLON is a senior lawyer. The above is the second part of a speech delivered at the Bar Council colloquium 'Current judicial trends and the rule of justice' on Sept 21. The first part was published yesterday.
