Question

What do you think of the stability of Common Law through stare decisis? What do you think of how judges "creep" or incrementalize changes to common law? Post your response then post thoughts on one students response.

Answer 1

Common law establishes a system of precedent. This is also known as stare decisis. This means that whenever a court has ruled with a particular set of logic the same logic is followed by other courts in future events in similar cases. I think this system of stare decisis provides a rigid but malleable structure to the justice system. The courts tend to follow the logic applied by previous cases. However, in doing so, they too are free to consider the current circumstances. This is a good approach.

Judges usually apply the doctrine of stare decisis. However, in case a situation is similar but not identical, it allows the judges some room for appending the logic with their own understanding. This creates incremental changes to common law. This is a necessary system. Because what is just today may not be just tomorrow and thus the common law should be able to evolve and apply to the current times. This incremental changes allow that to happen.

For example, consider that there had been no incremental changes in common law. We need to remember that once upon a time slavery was legal. Thus any ruling on those understanding today would be considered extremely harsh and violate the current understanding of basic human rights.