Ratio Juris. Vol. 10 No.

4 December 1997 (37291)

Equality before the Law

and Precedent*
ALFONSO RUIZ MIGUEL
Abstract. The paper explores the nature of the principle of equality before the law,
understood as the formal justice criterion that like cases must be treated alike, as a
rationale of the rule or system of precedent. The first part discusses and rejects
Kelsens thesis on the conceptual insignificance of that principle in the sphere of the
application of the law, identified uniquely with a logical criterion related to generality of rules and simple legality. The second part argues for the ethical relevance
of equality before the law as a reason for a legal system to have a rule of defeasibly
binding precedent.

1. Introduction
One of the common rationales put forward for legal systems to contain a rule
of precedent (though not necessarily a strict one) is the formal justice
principle that like cases must be treated alike, which in the sphere of legal
adjudication is usually specified in the traditional principle of equality
before the law. Just as traditional, however, but still not clearly settled, is the
dispute about the nature of that principle. For some scholars, such as Kelsen,
Lyons or Western, the principle that like cases must be treated alike is no
more than a purely formal criterion, which could be filled with any content
whatever, but in respect of the adjudication of rules it is at best a redundant
and useless criterion and at worst a disturbing principle. For others, however, such as Dworkin or MacCormick, such a principle is an ultimate moral
foundation of the commitment of State and judges in applying the law,
taking account of past history of the application of law in like cases. I shall
review this controversy and conclude that the principle of equality before
* Earlier drafts of this paper were read by Juan-Carlos Bayn, Neil MacCormick, Liborio Hierro,
Francisco J. Laporta and Pablo de Lora, to whom I am very grateful for their useful comments.
I am also indebted to the Spanish DGICYT, which supported my research stay in the Centre for
Criminology and the Social and Philosophical Study of Law, University of Edinburgh, as well
as to the latter and its Director, Zenon Bankowski, for all the facilities given to me there.
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the law has a relevant content in the application of the law, justifying the
existence of a relatively strong rule of precedent which lies half-way between
a strict doctrine of indefeasibly binding precedent and a relaxed doctrine of
precedent subject to exception for any reason whatsoever.
2. Equality before the Law: The Insignificance Thesis
The author who has argued most clearly and convincingly against any
significance of the principle of equality before the law is Hans Kelsen:
And now what of the special principle of so-called equality before the law? All it
means is that the machinery of the law should make no distinctions which are not
already made by the law to be applied. If the law grants political rights to men only,
not women, to citizens only, not aliens, to members of a given race or religion only,
not to members of other religions or races, then the principle of equality before the
law is fully upheld if in concrete cases the judicial authorities decide that a woman,
an alien, or the member or some particular religion or race, has no political rights.
This principle has scarcely anything to do with equality any longer. It merely states
that the law should be applied as is meant to be applied. It is the principle of legality
or legitimacy which is by nature inherent in every legal order, regardless of whether
this order is just or unjust. (Kelsen 1973, 15)

In order to fix Kelsens theses precisely, it is worth reminding ourselves that

for him the principle of legality was in its nature simply logical, not ethical,
and so fulfilment of legality is only correctness from a logical point of view
and has nothing to do with justice (Kelsen 1966, 91).
This seems to be a characteristic philosophical view which, although
contrary to common sense, attracts the mind and can seem indisputable
because of the way it fits with the assumed concepts of the theory. Nevertheless, some of these concepts have to be revised, and common sense can
ultimately win reassurance that there is some injustice when one persons
case is decided differently from the like case of another person, without a
relevant legal change between the dates of the respective decisions. To make
this point clear, Kelsens thesis can be separated into three different subtheses, which have been clearly and distinctively endorsed either by Kelsen
or by other authors.
The first states that equality before the law is no more than the logically
necessary consequences of the existence of rules, understood as general and
abstract criteria, i.e., as criteria which apply to a class of people for a class of
actions: The principle of equality before the law, then, would be nothing but
a logical consequence of the norms general character which commands that
some given individuals must be treated in a given way in the given circumstances (Kelsen 1966, 85); or, conversely, the principle of equality before the
law would be merely a different name for the principle of non-arbitrariness,
as an immanent feature of every normative system (cf., in this direction,
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Sadurski 1985, 789).1 I shall call this subthesis equality before the law as
generality of rules.
So far, the principle of equality before the law has been taken to mean
nothing more than abstract applicability of a rule on its own terms. However, from the idea of concrete applicability, or actual application, Kelsens
second subthesis follows: that the principle of equal application of rules is
entirely superfluous. Thus, in the same way as it is superfluous to assert that
applicable rules must be applied (since if applicable means which must
be applied we are only told that rules which must be applied must be
applied), so, asserting that rules must be applied to those cases to which they
refer if, as proper rules, they command obedience, is superfluous, plainly
redundant, and empty (cf., in this development, Westen 1981). In this sense,
equality before the law would be nothing but a superfluous repetition of
the principle of legality, and so I shall call this second subthesis equality before
the law as legality.
The third and last subthesis derivable from Kelsens text is that equality
before the law does not entail or bring about any requirement of justice
whatsoever, since a judges respect for that equality is perfectly compatible
with the most unjust inequality in the law. So, says Kelsen, when a law
allows men the right to vote while refusing it to women, a judge can treat
different classes of people differently without violating the principle of
equality before the law (cf. Kelsen 1966, 90). I shall call this part of Kelsens
thesis equality before the law as injustice.
These three subtheses have a different nature. The first two are only
different versions of a kind of reason aimed at denying conceptual relevance
to the principle of equality before the law. The first one insists on the fact that
the existence of rules, even as mere declaratory statements, establishes some
kind of equality, namely equality as generality of rules, and the second one
remarks that it is the fact of application of existing rules that brings about
equality as mere legality. In either case, the principle of equality before the
law would as a result be conceptually superfluous. The third subthesis however, is not conceptual but ethical in nature, and claims that equality before
the law lacks true moral weight, thus being ethically irrelevant. I shall discuss
both aspects to argue that this principle is both conceptually distinctive and
ethically relevant.
1

I have to point out that Sadurski is quite ambiguous in his formulations. On the one hand, he
says, according to the second subthesis I shall comment on straightaway in the text, that
[e]qual treatment of equal persons is therefore nothing else but the correct application of a
general rule (Sadurski 1985, 789; my italics); but, on the other hand, he states that [t]he
principle of equal treatment of equal persons is a necessary consequence of the general nature
of any rule which calls for certain treatment [] The very essence of a rule is that it brings
specific situations under a general scheme; hence all equal persons [] must be treated in the
same way. [] Those persons are, therefore, treated by this rule as equals in a certain respect
(ibid., 78; my italics). As we shall see below, this latter formulation is quite a different sense of
the thesis.
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3. On Conceptual Superfluity of Equality before the Law

3.1. Equality as Generality
The first thesis, that equality before the law as generality of rules is irrelevant
as a demand for equality, is partially, and only partially, adequate, but it is
not at the core of the legal application problem. The argument that the bare
existence of general rules satisfies the demand for equality is an ancient argument, already pointed out by Plato and Aristotle when they spoke in favor
of the government of laws not men. This argument purported to supply an
ethical argument, benevolently aimed at avoiding arbitrariness of government
treating people capriciously without equal concern and respect, but it does
not necessarily assure a just or fair equality. Since generality implies nothing
more than equal applicability to a class of people, as has been pointed out, it
can be not only compatible with racial and other discrimination but also
useful for institutionalizing them (cf., for example, Raz 1979, 21516 and 219,
and 1986, 221). Nevertheless, it must be conceded that the mere existence of
rules, independently of their application, can impose a limitation of some
kind on arbitrary power, thus being a necessary though not a sufficient condition for ensuring a social order having that minimum of equality required
for the exclusion of the more common manifestations of arbitrary power.2
In any event, as equality before the law calls for something more than mere
existence of enunciated or declared rulesentailing their application as well,
simple equality as generality, which as here understood refers only to declared
rules, cannot express the entire meaning of the principle of equality before
the law in the sense relevant in this discussion, namely, the sense that courts
must give equal treatment to people in like cases. Let us go on then to analyse
the second version of the thesis of conceptual superfluity of that principle,
now understood as equality in the application of the existing legal rules
(where, by rules, I will mean not only statutory rules, but also precedential
rules, principles and all criteria that can be asserted as part of the law).
3.2. Equality as Legality: On Logical Irrelevance
If the principle of equality before the law were only another name for
correctness in the application of rules, then a rule could not be infringed and,
at the same time, that principle violated. This is because the meaning of the
notion of infraction of a rule would already include, without adding anything, the violation of equality in the application of the law. Even more,
appealing to this latter principle would not only be superfluous but also
2

Isaiah Berlin precisely pinpointed this feature of general rules when, acknowledging the
possibility of rules being unequal by classifying people in certain ways, asserted that, as a
matter of fact, some minimum degree of prevalence of rules is a necessary condition for the
existence of human societies and that the kind of equality with which obedience to rules is
virtually identical is among the deepest needs and convictions of mankind (Berlin 1978, 85).
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distorting, by assuming to be different what is merely redundant. However,

there are several reasons to reject this criticism.
First of all, that criticism would apply not only to the principle of equality
before the law, but also to the principle of legality. If when a particular rule is
infringed there can be no more infractions than the infraction of the rule,
then nobody can be said to be infringing the general principle that, in some
legal systems at least, commands some people (especially officials and
judges) to respect and uphold the rules. Furthermore, this principle would
be impossible to enact for conceptual reasons. But this is plainly absurd. The
principle of legality can well establish a redundant duty, but it is by no means
useful and meaningful. And so it is with the principle of equality before the
law, with the important difference that this latter does not establish a
redundant duty, but a quite different one.
One of the main problems with Kelsens view lies in his statement that
correctness in the application of the law is correctness from a logical point
of view and has nothing to do with justice, and in his presupposed belief
that such correction exhausts all that can be said about equality before the
law. Nobody will dispute, of course, that correct application of the law
requires logical correctness, but that is not all that can be said, since there is
more to the application of rules than this mere logical correctness.
In fact, it is clearly a mistake to assume that the existence of a logical requirement makes a normative requirement, either moral or legal, superfluous, or
is incompatible with such a requirement. To say that judges, like everyone
else, should justify their judgements according to the rules of logic if they
want to think rationally does not at all make the legal and/or moral requirement that they should justify their judgements according to the rules of logic
because there is a legal and/or moral rule that commands them to think rationally
superfluous, nor are the two claims incompatible.
Considered in themselves, the requirements of logic are only rules which
set out the means for achieving the aim of reasoning soundly according to
deductibility and similar relations between assertions. Nothing more. But if
the only relevant requirement in the application of laws were the rules of logic,
a judge who infringed the former would only have violated a requirement of
rationality. Nevertheless, violating such rules of logic can be, and usually is,
and it is right that it should be, an infringement of moral and even legal duties,
which can establish various normative consequences for that conduct (such
as criminal liability for violation of duties by the judge, the removal of the
judge for mental incompetence, or the provision of appeals based on contradictions in the ruling). And it is this kind of normative requirement that
distinguishes the judges activity of complying with a rule of the legal system from the patients activity of complying with medical advice to exercise
his vocal chords every day by talking incomprehensible nonsense.3
3

This example was suggested to me by Juan-Carlos Bayn.

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Apart from that, if Kelsens thesis were acceptable it would most probably
prove much more than he claimed, since he distinguished between equality
before the law (or as to application of the rules) and equality in the law (or
as to rules themselves) as quite different concepts.4 Since in the Kelsenian
theory any rule, either legal or moral, obtains its validity from the declaration
of a higher ruleexcepting, of course, the rule that provides the first criterion of validity, it follows that his criticism of the principle of equality
before the law would also affect the principle of equality in the law. This is so
because the latter, by saying that all irrelevant or arbitrary distinctions must
be excluded, is nothing but a higher rule (either legal or moral), the nonapplication of which would be no more than a single violation of legality, i.e.,
of the validity chain between rules that would make any other reference to
equality superfluous. I do not assert that this approach cannot be pursued
in fact it has been taken to extreme lengths by Westen (1981, 1990), whose
argument cannot be discussed herebut only that it goes much further than
Kelsen presumably believed.
3.3. Equality as Legality: On Normative Irrelevance
Even accepting the previous arguments, one could replyalthough this is
not what Kelsen actually saidthat the normative duty to apply the law
equally is superfluous not because it is a requirement already set by logic
which adds nothing, but because it adds nothing to the normative duty to
apply the law. Yet this line of argumentation is not convincing either.
First of all, the notion of application of law is not strictly tantamount to the
notion of equal application of law, because the first time a rule is applied
there is no more than one term, and all equality relations demand at least
two terms to establish the comparison (cf. Lyons 1993a, 309). To put it another way, the court establishing the original precedent in a matter cannot by
hypothesis account for any former precedent, and in that case it cannot violate
the principle of equality before the law, although it can violate the principle
of legality, i.e., that of correct application of the law.
But a more pervasive point is that even if in most cases the fact of accomplishing the duty to apply the law coincides with (or even is strictly the
same as) that of accomplishing the duty to apply the law equally, this does
not mean that it is exactly the same duty. In general, it is by no means unimaginable nor inadmissible that by conforming to a legal rule someone
might conform to other, different rules at the same time. Conversely, it is
perfectly imaginable and prima facie admissible that disobeying a rule by an
action sometimes entails also disregarding other rules. This is a normative
4

So when Kelsen states: It can be equality before the law even if there is by no means equality
in the law. If the law allows the vote only to men and not to women, if, therefore, there is from
this point of view no equality in the law, the principle of equality before the law could nevertheless be honored (Kelsen 1966, 90).
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situation familiar to criminal lawyers, called ideal concurrence of crimes

as when a person commits various crimes by a single action (for example,
showing aggression to a judge could be at the same time a crime of assault
and a crime of contempt of court, irrespective of the fact that, by the principle bis in idem, the person cannot be punished for more than one of them).
Furthermore, infringing what appears to be one single rule can be wrongful for more than one single reason, and so the infringement too can be seen
as a fact that in the end violates several criteria at the same time. Actually,
the majority of crimes are in this category inasmuch as, on the one hand,
they usually refer to kinds of conduct prohibited not only by law but also by
moral and other social rules, and, on the other hand, apart from the specific
harm done to injured people, crimes can bring about general insecurity, incite other crimes, general economic costs, etc., i.e., they can infringe or affect
very different normative criteria or rules.
There is, however, a more fundamental and positive reason than these to
exclude the conceptual identification between the principle of equality and
the principle of legality. It is that they pull in opposite directions in the case
of valid or applicable, but inefficacious or usually unapplied rules (a particular
expression of this is the case of rules applicable in a certain way but traditionally applied in another way). In such cases, constant non-application of the
rule treats all the addressees equally, although that treatment is different
from the treatment they would have had if the rule had been effectively
applied (again equally, but in the opposite way). And so, for example, given
a valid rule that in fact has been ignored for years, the claimants request
for the rule to be applied on its own terms for reasons of legality can be
opposed rationallyi.e., without entailing either contradiction or nonsense
by the defendant asking for the rule to be applied in the same way as it has
been applied until the present moment, i.e., for the rule to be unapplied of
reasons of equality of treatment.
The reason for this divergence in consequences of following the principle
of legality or that of equality before the law lies, naturally, in the heterogeneity of the two ethical and legal values which ultimately support those
principles. On the one hand, the ultimate foundation of the legality principle
is the value of certainty, which aims to assure the quality of judicial answers
by pointing to solid groundsi.e., previous, known, stable and unique
criteriasuch as those presumably given for obedience to the rules on their
own terms; on the other hand, the ultimate foundation of the equality
principle is the value of (formal) justice, which aims to ensure as a proper
treatment like treatment for like cases. The same distinction can be made if,
accepting the conventionality of definitions, one wants to use a broader
concept of justice, saying that legality aims to ensure justice as certainty
whereas equality before the law aims to protect justice as equality.
Obviously, all the former arguments would become nonsense if the
principle of equality before the law were understood as asking for, literally,
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an equal application of the law, in the sense of a positive application of the rule
in all cases to which it refers, rather than for equality in the application of
the law, in the sense of equality in the treatment given to the addressees
of the rule in its process of application, a process that includes the different
interpretations of its applications and even its possible non-applications.
From a conceptual point of view (as distinct from the normative or evaluative one) if we interpret the principle of equality before the law as (positive)
equal application of the law in every case, then the thesis that such a principle collapses into the principle of legality as correct application of the law
becomes a trivial and entirely uninteresting tautology. However, this thesis
is also unsatisfactory because it makes the potential conflict between the two
principles either irrelevant or inexplicable. Since that conflict is an exposition
of different values, it is genuine and important.
As previously suggested, it is quite a different matter whether or not, from
a normative point of view, a given legal system (or a given moral conception)
must adopt a clear and uniform solution for that kind of conflict, either by
giving priority to the principle of legality over that of equality before the law
or vice versa. I shall return later in more detail to this point, but for now it
suffices to note that, as a clear case, it seems defensible to prefer the principle
of equality before the law to that of legality when the non-application of the
rule is widespread and has been consolidated (so, this reasoning would
allow a court to dismiss the application of a rule without accepting the always precarious argument of desuetudo, which would assume a much too
general commitment and would be presumably less clearly sound). Anyway,
the more relevant point here is that from a conceptual point of view there is
nothing absurd in asking for equality in illegality, which is sufficient to show
that the principle of equality in the application of the law does not collapse
into the principle of legality.

4. On the Ethical Irrelevance of Equality before the Law

4.1. The Relevance of Equality before the Law
So far all I have attempted to show is that talking about equality in the
application of rules makes sense, and that it is not a superfluous or, even
worse, a distorting principle. It is quite a different thing to show the principles ethical significance, which is to ask to what extent equality before the
law must prevail over other possible criteria, such as substantive justice or,
in the case of a valid but traditionally non-applied rule (or interpretation of
a rule), even legality. This is the point made by Kelsen when he maintained
that equality before the law has nothing to do with justice since it is perfectly
compatible with very unjust and inegalitarian rules.
We can fully acknowledge that any application of a rule that contains an
unjust distinction is itself an unjust act without accepting, as Kelsen seems
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to do, that equality before the law lacks any ethical value whatsoever. Kelsen
is right in pointing out that if a legal rule is unjust, its legally correct applications will be so too. However, this fact does not mean that equality
before the law lacks all moral weight. It only allows us to conclude that such
a principle, as well as the principle of legality and many other legal principles, is not an absolute and conclusive criterion, but only an overridable
one. And it means therefore that when the rules are just and, perhaps, even
when they are not plainly or seriously unjust, the principle of equality before
the law deserves considerable, though not absolute, respect.
Equality before the law has a role as an ethically sound legal principle
when it functions in a framework that reasonably assures equality in the law,
allowing exclusion, through judicial review, of the validity of rules that do
not respect the basic requirements of equal justice in their classifications,
imposing, for example, discriminations based on race, gender or the like. In
this aspect, equality before the law is a second barrier criterion, but it has to
be remarked that the first barrier, for judging the ethical quality of the rules
themselves, does not only include equality in the law but also respect for
other basic ethical principles, such as, particularly, basic human rights. So,
for instance, punishment for a crime of blasphemy against the Christian
religion can be unjust because the rule that imposes it should be repealed (by
parliament or by courts, depending on the kind of legal system) not so much
for reasons of inequality in respect of non-punishment of blasphemy against
other religionsa fault that could be resolved by widening the rule, but
for reasons of unfairness towards freedom of expression that seem to require
blasphemy not to be treated as a crime.
But now, one could reply that when the rule is unjust or unfair, the principle of equality before the law is insufficient because it does not serve to
stop injustice, and when the rule is just the principle is unnecessary since
then it will suffice to apply the rule correctly (not equally): In either case,
then, equality before the law would be ethically irrelevant. This is much too
crude an alternative, presumably based on clear-cut cases, which does not
grasp the complexity of the application of rules in legal systems. The clear
cases are two in number: Firstly, the application of rules which seriously
discriminate against some people or which are for other reasons plainly unjust (for instance, the rule that excludes nationals of a given race or religion
from the right to vote or the rule that forbids freedom of political expression);
and, secondly, the application of rules which have always been straightforwardly and one-dimensionally interpreted (for instance, the rule that
applies a heavier penalty for an aggravated crime).
In both those kinds of cases equality before the law seems indeed to
add nothing. But that is only an appearance due to the fact that the two
are extreme types of cases standing in a line which also includes other
intermediate and more interesting types. Actually, in cases of the first type,
it is not the equal application of the unjust rule that adds more injustice to the
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existence of the unjust rule, but its mere application. Even more, although in
perverse legal systems it will be preferable for the most part not to apply the
unjust rules, it cannot be excluded that applying some of the less harmful
ones equally could serve to limit the otherwise pervasive capricious arbitrariness of the legal system, which could be a greater evil. So, it would be
preposterous to say that a judge is morally required for the sake of equality
before the law to apply capital punishment which an efficacious rule sets for
politically disobedient Jews, if he or she has the opportunity to avoid it in
one case; but it is arguably reasonable for a judge to take account of the
principle of equality before the law and to deny the acquittal of the son of a
rich and powerful man for having violated the same dictatorial states rule
prohibiting nakedness on the beach when that is the rule usually applied. All
that it means is that even in unjust legal systems the principle of equality
before the law continues to bear some weight, though generally it will in
comparison be so low in regard to the material injustice of the rule and of its
application that it will usually in the end be scarcely considerable.
Whereas equality before the law bears some weight it is more clearly
perceptible when we consider rules which are only slightly unjust. Suppose
that I go to a government office to ask for an official certificate and learn that
the rule there is that they will receive my application today and deliver the
certificate tomorrow; while I am filling in my application I can see officials
reading newspapers and chatting; I also see another man presenting his
application with great familiarity to the official and note that he is told to
wait only a few minutes, after which he is given his certificate. Can I not justly
complain that this is an unfair inequality in the application of an otherwise
slightly unjustified rule? Of course, as simple equality can always be got in
two ways (obeying and not obeying the rule in every case) and as the rule at
hand is rather irksome but not very onerous, I would want to be treated in
the same way as the privileged man. But the relevant point is that there
is also some justiceand presumably, if the rule is generally applied when
no other special reasons exist (such as extreme urgency or the like), more
justicein complaining against the privilege, asking that the privileged
man be treated like everyone else, despite the possible injustice of the rule
itself. This would be impossible, I think, if equality before the law lacked any
moral weight and were ethically irrelevant.
At the other extreme, equality before the law also bears some weight in
cases of just rules which have usually been applied in a plain and simple
way, although that principle can seem almost irrelevant because of the somewhat mechanical application of the rules. But if it bears some weight in
cases which are less clear, it must also do so in these cases. This can be seen
in the following example, reflecting a typical situation admitting different
possibilities all of which are acceptable and require a rule of co-ordination,
as, for instance, cars driving on the right or on the left. Suppose a statutory
rule that states that valuations of property for a local council tax will last two
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years, and that half of the houses will be reassessed each year; then suppose
some local authorities split their cities by streets, some beginning with odd
numbers and others with even numbers, and other authorities split theirs
by the names of the tax-payers, some beginning with a and others with
the first letter drawn by lot; now suppose that, when implementation of the
rule is still in its inception, a complaint against the vagueness of the statutory
rule reaches the Supreme Court, which in a reported judgement decides that
the proper way of splitting properties for tax assessment is by a local draw;
a week later, suppose further that another sitting of the Supreme Court
hears a similar case and decides that the proper way is by a national draw.
Cannot a complaint be made for reasons of equality that the second judgement has not taken sufficient account of the previous judgement (i.e., of the
precedent)? Of course, this will be a complaint made much more willingly
by people who could benefit from the former interpretation, but even if
that is the case, the important point seems to be that everyone must acknowledge that where there are no significant reasons for changing the interpretation of the rule already made, equality before the law remains a relevant
reason (although presumably not the only one, as we shall see) to hold to the
precedent.5
Finally, a third kind of intermediate situation in which the weight of equality before the law is clearer is the reverse of the foregoing example. Suppose
that in the office where I apply for a certificate I am told, instead, that even
if the legal rule requires certificates to be delivered a day later, they are usually
produced within five minutes; while I am filling in my application I can see
another man presenting his application and arguing fiercely with the official,
who finally tells the man to come back next day to get his certificate. Is that
not unjust and arbitrary official conduct because of its contempt towards the
principle of equality before the law? Can it not be said that such unjust
inequality is a worse result than continuing not to apply the rule and, in that
particular case, the principle of legality?
Therefore, equality before the law seems to bear some weight in every
case, although that could be more visible and specially relevant in intermediate cases such as the last three I have exemplified. However, in the first
of them the foregoing picture does not properly reflect the actual functioning
of legal decision-making processes, since committed interpreters, as judges
5
Lyons (1984, 585) justifies cases of this kind, considering the original decision as a commitment, made to others, that future decisions in similar cases shall be made similarly. We need
not exclude the possible additional relevance of this kind of reasoning to maintain the relevance
of equality before the law as a different and independent reason, since even if the legal system
excludes the commitment that courts will follow precedents, there being no such social expectancy, not to follow a precedent such as that of the example in the text still seems to be wrong
for reasons of equality (in the example, moreover, I have introduced the feature that the second
judgement is given only a week after the first in order to exclude, or at least to minimise, the
relevance of the reliance argument, which is another consequence of Lyons reasoning, insofar
as people adopt different courses of action relying on the expected conduct of authorities).

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usually are, do not ask straightaway about the justice of rules, but about
their legal correctness (the answer to which, naturally, can be required more
or less openly to refer to criteria of justice but, as criteria embodied in the
legal system, never directly). So, hereafter it will be convenient to point out
the justification of following legally incorrect precedents rather than simply
unjust ones.
In the functioning of a legal system, then, it can be useful to differentiate
four kinds of application of rules when precedents are in point. At the two
extremes, the case of a clear legally incorrect application of the rules by the
previous decision (or decisions) and the opposite case of a clearly correct and
indisputable application, where equality before the law plainly seems not to
be a sufficient (in the first case) or a necessary (in the second one) reason for
relying on precedent. In between lie the case of a slight or not serious legal
defect in the previous decision and the case of a previous application of a
rule which, at the time, admitted different interpretations because it did not
make much difference until one of them was settled. In the remainder of the
paper, I will consider the weight of the principle of equality before the law
in regard to these last two kinds of precedent.

4.2. The Weight of Equality before the Law and the Rule of Precedent
If the principle of equality before the law always has some weight which has
to be pondered in the application of the law, the rule (or system or doctrine)
of precedent should have some weight in any legal system. How much
weight? Authors who have asserted the relevance of that principle, such as
Dworkin and MacCormick, agree, for good reasons, that its weight as a rule
for following precedent cannot be absolute, but although both start off from
quite similar (though, as we shall see, not identical) assumptions in this
matter, they seem to arrive at quite different conclusions about the extent of
that weight.
Ronald Dworkin quite clearly excludes the justification of a strict doctrine
of precedent in his legal theory of integrity, which is simply another name
for the principle that we must treat like cases alike, meaning for him not only
that the past must be allowed some special power of its own in court
(Dworkin 1986, 16567), but also that present practice can be organised by
and justified in principles sufficiently attractive to provide an honorable
future (ibid., 22728). Besides, Dworkins view that judges act and have to
act by constructing the best interpretation of the legal system, being quite
indeterminate as to the concrete weight of equality before the law in following precedents, seems to suggest that its weight is minimal when the previous
case gives an unjust or unsatisfactory answer in the light of the abstract
principles of fairness and justice that in his theory the legal system (i.e.,
in fact, all western legal systems) is assumed to honour (cf. ibid., 185, 245,
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255).6 If this conclusion holds, the rule of precedent, so justified for reasons
of equality before the law, tells not only in favour of a non-binding rule of
precedent but also for an outweighable rule of precedent, according to which
precedents can be disregarded or overruled for simple countervailing reasons.7
MacCormicks view seems more exigent. He regards the principle of formal
justice, of treating like cases alike, as a principle that is backward- as well as
forward-looking, and even more the latter, as its forward-looking aspect is
what governs the duty to decide todays case in a way one would stick to for
the future (MacCormick 1987, 161, n. 2; see also MacCormick 1994, 735). It
is this double aspect of the principle of formal justice as understood by
MacCormick that explains his rejection of the strict doctrine of precedent
that requires all precedents to be binding (cf. MacCormick 1987, 158, 1712,
182). However, presumably because MacCormick does not take so strong a
view as Dworkin about the commitment of the legal system to powerful and
stringent moral principles, he gives clear and important weight to precedents, asserting a rather strong presumption in their favor and requiring
not simply countervailing reasons but, it seems, more exceptional reasons.8
That yields a not strictly binding but defeasible rule of precedent, which
requires that precedents must be applied unless exceptions come into play.9
Before analysing these two views more closely, let me introduce some
distinctions useful for understanding them better and discussing them further. In speaking about the rule or doctrine of precedent we can be referring,
6

This rough description does not attempt to do justice to the complexity of Dworkins theory,
where it is not clearly determined when one must (or can) appeal to principles and when one
must follow a precedent, even if there is a considerable record of American Supreme Court
precedents that Dworkin considers both unjust and unconstitutional, such as Dred Scott, Lochner,
Plessy or Korematsu (cf. Dworkin 1986, 37476). Indeed, his defence of the solution that better fits
both past institutional legal history and principles of political morality sustained by the
community is ambiguous and, like the Rawlsian criterion of reflective equilibrium, can probably
bring about more than one single solution. Therefore, we cannot exclude the possibility that
Dworkins theory gives more weight to precedent than I suggest in my interpretation (see a different interpretation, referring to The Model of Rules I rather than to Dworkins subsequent
writings, in Perry 1987, 22325, 25455). In fact, when Dworkin applies his theory to the legal
dispute over abortion, he accepts that a precedent as important as Roe v. Wade should not be
overruled, after over twenty years, unless it was clearly wrong (Dworkin 1993, 171) and so, he
seems to accept at least one of the two kinds of cases I have pointed out as typical of precedential
force. However, since such a conclusion fits in with Dworkins interpretation considered best on
that particular matter, his criterion may not be sufficiently distinctive. Anyway, we can take the
interpretation stated in the text as a plausible one, useful for argumentative purposes.
7
I am following here, though only in part, the terminology elaborated for the Bielefelder
Kreis in a questionnaire about a Comparative Legal Precedent Study discussed in meetings
held in Bologna and Florence on June 1994 with a view to a book on the subject that continues
the research line of MacCormick and Summers 1991 (see MacCormick and Summers 1997, 55455).
8
MacCormick (1987, 167) states: Even where precedents are held to be persuasive rather than
absolutely binding, there must be a rather strong presumption against departing from what has
already been decided. It would require to be shown that some new departure would cohere
better with the main line of legal development, as well as being fairer or preferable in its consequences than the relevant precedent(s), before there would be sufficient reason for not standing
by decisions.
9
See supra footnote 7.
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on the one hand, either to each particular court or to the judicial system as a
whole, and, on the other hand, to respect or consideration towards precedents either of higheror only the highestcourts (vertical precedent) or
courts of the same levelor only the same court(horizontal precedent).
These distinctions, added to the prior one regarding the degree of weight of
the rule of precedent, can combine in multiple systems of precedent, but a
few comments can suffice in this context. The reasons of formal justice in
favor of a rule of precedent which is not strictly binding apply not so much
to each court or judge but rather to the judicial system as a whole, because
equality before the law gives relevancy to the relationship between citizens
and state, not between citizens and a particular court.10 If this is so, then the
establishment of a defeasible rule of precedent seems necessary only in
regard to the horizontal precedents of courts of final resort (usually, at least
in important matters, the highest court). So, it is not excludedand perhaps
may not be required either, provided that a satisfactory system of judicial
review and harmonisation existsthat the other courts be subjected to a rigid
stare decisis duty, i.e., to a strictly binding rule of vertical (and horizontal)
precedent (see Caminker 1994). In a similar way, the discussion of the relative
merits of a rule of outweighable and a rule of defeasible precedent is especially
pertinent with regard to the horizontal precedents of courts of final resort.
As is settled both for Dworkin and MacCormick, the principle of formal
justice seems to contain two aspects: one of a logical nature, pressing for
rationality as consistency among previous decisions, present decisions and
the rules and principles of the legal system, and the other of an ethical nature,
aiming at the equal treatment of like cases. But thus understood, in spite of
Dworkins or MacCormicks conclusions, neither aspect can justify more
than a simple duty of the court to consider or to take account of precedents,
it being perfectly justifiable to disregard them whenever the court deems it
preferable to do so, even for the slightest reason one can think of. This conclusion weakens the weight of the principle of equality before the law to the
minimum, probably a good deal more than is assumed in Dworkins theory
and, a fortiori, much more than in MacCormicksas here interpreted.
Where is the problem in this puzzle?
The main problem, in my view, lies in the ambiguity of the principle of
equality before the law as related with that of formal justice. In a first and
limited sense, as I had been interpreting it here until commenting on
Dworkins and MacCormicks theories, equality before the law is only
backward-looking and requires (though not absolutely) consistency between
the present decision and prior decisions, i.e., not only consideration but
also some weight for prior decisions. In a second and broader sense, as
10

Despite the centralist appearance of this statement, we need not assume that state law is a
centralised complex of rules any more than that all its rules refer to all citizens without exception;
rather, law can very well contain rules differentiating several classes of people, including those
related to local, regional or national communities.
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understood explicitly by MacCormick and arguably by Dworkin, equality

before the law requires present and prior decisions to be made consistent not
only by adjusting present decisions to prior decisions but also, if they differ,
adjusting the prior to the present (in this case ideally or hypothetically, given
the principle of res judicata, implying that the prior judgement has been a
mistake and should have been decided in the present and preferable way,
i.e., either overruling or disregarding it).11
As Theodore Benditt has pointed out, understood in the broader sense,
neither logical consistency nor formal justice says more than that if the decisions of two similar cases are different, then at least one of them is (logically
and/or normatively) incorrect, but it does not say which is wrong (Benditt
1987, 8990). Note that here a statutory change makes both cases different, so
avoiding inconsistency and a fortiori formal injustice, but the important thing
is that, in this view, what Lyons has called (in a non-political sense) the
conservative bias of the doctrine of precedent does not arise (Lyons 1993b,
114). In the broader sense, formal justice is not disregarded but is actually
accomplished when a court says simply that todays decision seems to the
court better than prior one(s). In its strict sense, however, equality before
the law requires judges to honour prior decisions to a certain extent, which
excludes simply saying that todays decision is preferable, as that is an insufficient reason and allows one to assert that equality before the law has not
been given any weight at all, and that in fact it has been disregarded.
Otherwise, as a mere conceptual point, a theory can hardly claim that it is
defending a rule of precedent if it allows deviation from precedents simply
because they are incorrect. As various scholars have remarked, if the doctrine
of precedent has any significant meaning, it would seem necessarily to imply
that rules are to be followed because they are rules and not because they are
correct rules (Wasserstrom 1961, 52). Although this is quite a strict sense
of the idea of having a rule of precedent,12 it does not entail that only a strictly
binding rule is a true rule of precedent, since there is a sufficiently distinctive
11

However, MacCormick (1994, 74) also uses alternatively the strict sense of the principle when
he asks whether it is better to perpetuate a substantive injustice as the price of satisfying formal
justice, where the opposition between them would not make sense if formal justice were
understood not only as respect for previous decisions but also requiring that I decide todays
case on grounds which I am willing to adopt for the decision of future similar cases (ibid., 75).
Illustrating the point made above in the text, this rationale is not consistent, I think, with the
thesis that formal justice requires that it shall not, save for strong reasons, decide this case in a
manner unlike the manner of its prior decisions in like cases (ibid.): If I am not wrong, this
conclusion is only educible from a strict sense of the principle of equality before the law, which
is the only one that sets the onus of justification upon the reasons not to follow the prior decision
(I come back to this further on in the text).
12
In such a strict sense, so-called persuasive precedent (when courts duty is only to consider
or take account of precedents without having to follow them) does not constitute a true rule of
precedent. Nevertheless, it has to be acknowledged that a legal system which contains a rule
of persuasive precedent gives some force, though minimal, to previous decisions, and is not
equivalent to a system that lacks even that rule. So, perhaps it would be useful to speak of two
senses, one strict or proper and the other broader or improper, of the idea of having a rule of
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rule of precedent if precedent may be disregarded when it is incorrect,

provided that precedent is not disregarded whenever it is incorrect for any
reason whatsoever. Thus, Frederick Schauer set out the point exactly when
he stated that if precedent matters as a rule, then even a prior decision now
believed legally incorrect has to have some independentalthough I would
add, not absolute or conclusiveweight in todays decision (Schauer 1991,
18283; see also Schauer 1987, 57172, 57576, 59294).13
precedent, as a different distinction of that strictly or not strictly binding precedent: In the strict
sense the rule of precedent embodies the duty of following precedents either without exception
(system of strictly binding precedent) or excepting some more or less demanding reasons
(systems of defeasible and outweighable precedent, respectively), but excluding the possibility
of freely not following a precedent. The broader sense of the rule of precedent, in which the
court has the mere duty of considering or taking account of the precedents, includes the latter
possibility as well.
In any event, the former distinction seems an important one not only (or perhaps not as
much) regarding the traditional difference between common law and civil law legal systems,
but also (or rather) the different effect of having a proper rule of precedent or not: Thus, for a
decision-maker in a system which does not have a proper rule of precedent it is possible to
decide each case in its own balance of reasons, trying to reach the best solution. In the contrary
case, when the system has such a rule, the decision-maker can sometimes be compelled to
choose a second-best solution (or, more precisely, what would be a second-best solution if a
system of precedent had not existed). This latter outcome arises either because the duty to follow precedent compels him to accept a criterion which he would have ruled out if such a duty
had not existed or because of the consideration of his own present decision as forward-looking,
i.e., with effects on future decisions (for example, in this last regard, holding that a racist public
comment gives rise to a cause of action in tort might be the best isolated decision, but could be
overriden for the differentnot isolated but relateddecision to rule it out by taking into account the possibility of a future undue extension of that criterion to any troublesome comment)
(see Schauer 1987, 58890; nevertheless, I would like to add that Schauer seems to generalise
this aspect of a rule of precedent by seeing only its price but not its value as to certainty, equality,
efficiency, etc. in decision-making processes; for further comment on this issue, see infra
footnote 15 and the text it refers to).
13
Schauer denies that any other form of precedent could exist except binding or necessary
precedent, since either the precedent is followed because the case is similar (and then it is
binding) or there is a reason for distinguishing it because the case is different (and then it is not
in point and, therefore, it is not binding) or, in any other event, it is overruled (and then its
force comes to an end). In neither case, Schauer argues, is precedent outweighed in the same
sense in which a rule is overriden by special reasons, as when one prefers lying in order to save
a person from a murderer, where some of the force of the rule persists even though it may
not control the outcome. In the case of precedents, Schauer concludes, their weight is instead
either necessary or absent but never presumptive (Schauer 1987, 59394 and n. 47) and so, the
categories of defeasible and outweighable precedent would be, according to Schauers view,
misleading and empty. However, on the one hand, the idea of presumptive (or defeasible or
outweighable) precedent continues to have a useful meaning if referred to the different rules
that legal systems can contain about the duty of following precedents for a court, which can be
absolute, binding it to follow or to distinguish them (rule of binding precedent), or not absolute,
allowing it to depart from them when exceptional reasons apply (rule of defeasible precedent) or
countervailing reasons exist (rule of outweighable precedent); on the other hand, although
the notion of departing from a precedent could be generally matched with overruling it, there
remains another possibility, where the analogy between overriding a rule and outweighing a
precedent (without overruling or distinguishing it) still holds when the actual normative
system does not contain a rule of priority which deems every precedent not followed to be
overruled when it is in point: Besides the debatable status of silent over-rulings even in systems
of binding precedent, the rule, for instance, can simply command adherence to precedents, or
lines of precedents, except when these are considered seriously incorrect, without deeming
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5. Equality, Legality and Flexibility

Even if the immediately foregoing discussion has been chiefly analytical, not
favouring either of the two versions of the principle of formal justice, my
analysis of equality before the law has assumed the correctness of the strict
version. All I can do now is to extract the conclusions of the main argument
in its favor stating that in a legal system reasonably able to expel unjust and
unequal rules, the principle that people deserve to be treated equally before
the law, always provided that legislation remains the same, requires judicial
precedents to be followed when the criteria they contain are not clearly or
not sufficiently incorrect in the light of the existing law. This is because it
turns out to be better to take todays decision on the previous either indifferent or slightly debatable criteria, by virtue of the addition of the principle
of equality before the law (and probably also other principles which favor
following precedents, such as those of the certainty and reliability of rules
and, to a lesser extent,14 the efficiency of the judicial system15).
This seems to justify a rule of defeasible precedent that requires judges to
follow a precedent not only when its solution is clearly and positively
correctin the sense of the single correct answer, as in an acquittal of one
criminal charge supported by dubious evidencebut also in two other
kinds of cases. Firstly, when the solution itself wasand, had it not been
adopted in a previous decision, it would have continued to beuncertain
or indifferent, in such a manner that it is not by itself clearly either correct or
incorrect, and no other alternative solution would be either16 (obviously,
them overruled, i.e., rejected or definitively ruled out. Thus a later decision may outweigh the
immediate previous precedent in favor of an older solution without establishing a new
criterion, merely recovering the former one.
14
To a lesser extent, I say, because efficiency can also be got by other means, such as spending
more resources, discouraging appeals by economic burdens, etc.
15
Expanding on some points I made supra in footnote 12, the texts comment means that, in the
end and all things considered, the outcome of a decision taken under a rule of precedent could
be the best one once we add to the balance the virtues of having such a rule, even if the outcome
would have been better without it. This seems quite clear at least in the backward-looking
aspect of precedent (i.e., inasmuch as the decision-maker is constrained by past decisions), but
it is also arguable that it is the case even in its forward-looking aspect (i.e., inasmuch as a
decision-maker has to consider the possible future effects of todays decision), which is but a
concrete expression of the problem of whether to have rules in the strong sense of the word, as
patterns which must be followed for their own sake and not for the justifications backing them.
This is not the proper place to discuss the matter in detail, and it may suffice to observe that
there is something paradoxical in the core of Schauer (1997), something which is clearly laid open,
for example, when he asserts that rule-based decision-making can be seen to be intrinsically and
logically conservative (in the non-political sense of that word), abjuring the possibility of complete
optimisation in an attempt to avoid disaster (Schauer 1991, 102); but if, all things considered,
it is better to have rules to resolve some kinds of disputes instead of leaving the decision-maker
to search for the best outcome on the particular balance of reasons in each case, then in reality,
ex hypothesis, the best outcome as a whole (i.e., in more cases than in a decision-making system
without rules) will be obtained by using rules: in Schauers own terms, the best outcome is to
avoid disaster and not to search for an acknowledged illusory complete optimisation.
16
Alexy points to this kind of cases in Alexy 1989, 27778.
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ex hypothesis, this will not occur if a distinct and clearer or more preferable
solution arises at the time of the later decision). Secondly, when the former
solution is slightly incorrect, in the sense that it does not plainly violate the
then existing law, and in todays similar case the weight of that defect is not
as important as the principle of equality before the law, and also, it should
be added, of the other criteria working in favor of following precedents, such
as legal certainty, reliability and efficiency.
This second kind of case can seem somewhat doubtful and disputable for
two reasons. Firstly, because the line between the two different degrees of
incorrectness here considered cannot be exactly drawn. This argument,
however, which will be relevant in practice in the unavoidable grey area,
cannot count against the theoretical relevance of the criterion in clear cases.
Secondly, following precedent when the previous decision is incorrect, even
slightly, can be disputable because some people will consider that reasons
for generally following precedents are and should be counter-balanced and
even overruled by reasons against it, such as, on the one hand, the necessity
or, at least, the convenience of keeping a flexible connection between social
changes and legal rules through the judicial application of the law, and, on
the other hand, the overriding weight of the principle of legality compared
to the weight of equality before the law. Let us look at both more closely.
As for the flexibility argument, the argumentation developed here makes
it possible to give a better account of this kind of reason without presenting
it as a generic counter-balancing consideration against the rule of following
precedents in every case. Rather we must say more precisely that, if it is acceptable for judges to introduce changes in the rules when social circumstances have changed (in fact, some legal systems even accept it expressly in
their statutory rules on legal interpretation, although reasons could be presented against this sort of judicial carte blanche), these changes must be important enough to count as a reason why the criterion applied in the previous
case has now become seriously incorrect, not merely remaining as a slightly
incorrect one.
The plea for the principle of legality exhibits other problems. Considered
as a simple legal argument, such a plea will be self-defeating if the concrete
legal system contains, formally and/or by tradition, a rule of precedent which,
embodying or presupposing the relevance of the principle of equality before
the law, requires precedents to be followed at least when they do not establish seriously incorrect criteria. For, in such a case, it will be impossible to set
in opposition the principle of legality and that of equality before the law,
simply because not following a pertinent precedent would be contrary to
legality, i.e., to the law as a whole, which includes the principle of equality
before the law as relevant for the rule of precedent. On the contrary, in a legal
system which does not contain any proper rule of precedent, the prevailing
legal force of the principle of legality over that of equality before the law
will be almost self-evident. However, neither the former nor the latter case
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are decisive as to the question of the appropriate or justifiable weight that

equality before the law should have in a legal system. In my opinion, as
mentioned before, when the incorrectness of the precedent was not serious
(or has not for other reasons become so) equality before the law is to prevail.
And, rather than limit myself to repeating the idea, let me illustrate it with
an actual Spanish case.
Two tenants of a house had substantially identical contracts with the same
property company, which according to one interpretation raised both rents
in a given way (let us say, annual increase based on the original rent). Both
took legal action against the company and two different courts accepted
their claims, interpreting the contract in another way (let us say, annual increase
based on the previous years rent). The company appealed against both
judgements to a higher court which gave, in two different sittings, different
and final judgements, one granting and the other dismissing the appeals.
The tenant who lost, whose judgement was handed down later of the two,
lodged an individual complaint before the Constitutional Court invoking the
constitutional principle of equality before the law. The Constitutional Court
dismissed the appeal, holding that although that principle requires every
court to follow its own precedents unless it furnished a sufficient reason, which
was not done in the case, the individual complaint before the Constitutional
Court cannot be the proper way to redress contradictions in the lower courts
judgements (see Spanish Constitutional Courts Auto 862/1986, October 29).
In cases like these, is it not irrelevant whether the first judgement interprets
the contract terms correctly? Does not the principle of equality before the
law plainly have more weight than a presumed respect for a limited and
distorted view of legality? And, finally, does not disregard of equality before
the law on behalf of legality, tend to conceal and even to support the coexistence of different, usually opposite, judicial understandings of the same
legal rules, which in fact are unequally applied to the same kind of people?
In short, all previous arguments conclude that equality before the law
provides a substantive reason for following a rule of defeasible precedent,
meaning that subsequent decisions must not only take account of prior
decisions, but also give them a certain weight, not overridable unless sufficiently strong reasons can be shown. Or, to put it another way, equality
before the law seems to set the onus of justification upon the reasons for not
following the prior decision. And the reasons I have given here for that
conclusion, or so I hope, set the onus of justifying the view that it does not
hold upon those wishing to maintain a different conclusion.
Autonomous University of Madrid
Faculty of Law
28049 Cantoblanco
(Madrid)
Spain
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