stare decisis

Stare decisis is an abbreviation of the Latin maxim stare decisis et non quieta movere, meaning 'to stand by decisions and not disturb settled things.' The verb stare is the infinitive of sto, stare (to stand), one of the most productive verbs in Latin: it gives English 'station,' 'status,' 'statute,' 'constitute,' 'institution,' 'stable,' 'estate,' and the -stan suffix of many country names (Afghanistan, Kazakhstan — 'place where one stands'). Decisis is the genitive plural of the past participle decisum, from decidere (to decide), itself from de- (down from) and caedere (to cut): to decide is to cut off deliberation, to cut away alternatives. Stare decisis means to stand by the cuttings — to hold firm to what deliberation has already severed from uncertainty.

The doctrine of stare decisis — binding precedent — is the distinguishing feature of common law systems as contrasted with civil law systems derived from Roman law. In civil law jurisdictions (France, Germany, Spain, and their descendants), courts apply codified statutes and do not formally bind subsequent courts by prior decisions; the code is the source of law, not the case. In common law jurisdictions (England, the United States, Canada, Australia, India), judicial decisions are themselves sources of law, and later courts are bound by earlier decisions on the same legal question — at least in principle. The distinction is not absolute: civil law courts do follow precedent in practice, and common law courts can and do depart from prior decisions. But the formal commitment to binding precedent is constitutive of how common law systems understand themselves.

The question of when courts may and must depart from prior precedent — when stare decisis may be overcome — is one of the most disputed in jurisprudence. The United States Supreme Court has articulated various factors relevant to overruling a prior decision: the quality of the prior reasoning, whether reliance interests have grown up around the rule, whether the rule is workable in practice, whether the relevant facts or law have changed. In Planned Parenthood v. Casey (1992), the plurality opinion dedicated more than twenty pages to the stare decisis analysis of whether to overrule Roe v. Wade — ultimately declining. In Dobbs v. Jackson Women's Health Organization (2022), the Court overruled Roe, finding the stare decisis factors outweighed by the strength of the argument that Roe was wrongly decided. The doctrine that says courts should stand by decisions thus coexists with the power to conclude that a prior decision should not be stood by.

The concept behind stare decisis is older than the Latin phrase. Aristotle argued in the Politics and the Nicomachean Ethics that the rule of law requires that like cases be treated alike — not merely that the right answer be reached in each case individually, but that a system of rule-governed decision-making be maintained, even at the cost of occasional suboptimal individual outcomes. The legal maxim formalizes this Aristotelian insight: stability in legal rules is itself a value, not merely instrumental to reaching correct outcomes but partially constitutive of what a legal system is. A legal system that could instantly reverse any rule whenever a new argument appeared would not be a system at all. Stare decisis is the technical Latin name for the common law's wager that consistency across time is worth some sacrifice in individual correctness.