Should precedents bind or persuade? The pros & cons

The effect a past judicial decision produces over the legal system is a question of importance not only for public law but for law in general. Determining whether a past decision should bind or persuade future courts is a political rather than a legal choice: nothing in law’s nature requires a specific option. In this paper I identify the values the binding model of precedents seeks to uphold: inter alia, to protect legitimate expectations, equality before the law and stability to the legal system. I argue that though these are sound values, the binding model entails a means (stare decisis) disproportionate to its ends. It is disproportionate because it places a heavy burden on judges (ie. to adjudicate & give law, which are conceptually different activities, and I articulate why). This, in turn, may conflict with two fundamental values: the adjudicatory independence of judges and the principle of separation of powers. I argue why the persuasive model is a bettter solution