The Dark Side of Precedent

The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps.  However, stare decisis is not a straitjacket that condemns the law to stasis.  – Carter v. Canada (Attorney General), 2015 SCC 5

The past haunts the present. Judges appeal to past decisions to justify their present decisions. This appeal to authority paints the decision with the hue of inevitability. Professor Elizabeth Judge explains “the judicial author chooses a family tree, but reverses the temporal scheme, as the child chooses the precendential parents”.

But, what happens when all of the “precedential parents” are rotten?

Sometimes the law develops in a skewed way as deep pocketed clients stack the deck in their favour. These client lobby the right policymakers, while strategically picking their lawsuits. All so that they can get the law lined up in their favour. Instances of this can be seen in many areas of the law, from insurance law to tax law, where one side of the dispute is an industry titan and the other side is a lone player.

The problem of David versus Goliath becomes amplified when lawyers push for skewed laws to be blindly applied to every case, arguing that alike cases must be treated exactly alike. However, treating things exactly alike may be unfair.

As stated in Andrews v Law Society of British Columbia, [1989] 1 SCR 143, the notion that all things alike should be treated alike is deficient. If it were applied literally, “it could be used to justify the Nuremberg laws of Adolf Hitler. Similar treatment was contemplated for all Jews.” It follows then that a bad law should not be saved “merely because it operates equally upon those to whom it has application”. Instead, judges must consider the “content of the law, its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application.”

When applying precedents, especially in industries known for having huge power imbalances between parties, judges should pay extra attention to the law’s history. Whose voices shaped the law? Whose voices were marginalized, ignored, and submerged? Blindly bowing down to the altar of precedent merely reinforces power imbalances and undermines the goal of fairness.