In light of the discussions of precedent in the previous two posts, I thought it might be worth posting something from a piece by law professor Harlan Cohen entitled Theorizing Precedent in International Law (I think he has more coming on this issue):
The ingredients discussed in Part III—sources, features, actors—can be combined to tell three intertwined stories about the emergence of international precedent, one rationalist, one jurisprudential, and one sociological.
A Rationalist Account
Under this account, interpretations should be invoked or treated as precedent when doing so helps achieve various actors’ broader goals. Such an account largely tracks existing explanations for precedent described earlier.70 For a state actor, this may mean citing a precedent that supports a position a state wants to take or that a court might predictably favor (for example, one of that court’s own prior decisions). For the judge, it might mean citing a precedent from a court it is trying to convince or citing its own decisions to solidify its control over interpretation.
But such a rationalist story could also explain why states might support a broader system of precedent, even when doing so may not always favor their desired positions. To the extent states are invested in a particular regime, predictability may be valuable enough for them to support precedent-based arguments generally. This is true whether the potential precedents are found in state actions or in judicial opinions. To the extent third-party decision-making is capable of resolving difficult coordination problems, states may give a court or tribunal’s decision precedential force in order to preserve that court or tribunal’s authority in the regime.71 (Questioning that body’s decisions too often might undermine that body’s authority.) Moreover, treating prior decisions as precedential might add desirable clarity to the rules. To the extent states value general clarity more highly than winning the cases precedent might cost them, states should support precedent.72
Of course, few (if any) regimes explicitly provide for precedential effect. This suggests that for the states designing those regimes, the optimal level of clarity and predictability is greater than a system of de novo review but less than one of stare decisis. Denying the force of precedent, while nonetheless arguing from it, may be a way of calibrating precedent’s exact weight. Assuming that arguments from precedent will have some natural force (see the next story), this strategy could allow states to take advantage of the predictability of precedent, while still retaining some room to argue against a precedent’s relevance in a particular case. The danger of this strategy, as demonstrated by the precedent-creep in the WTO, ECJ, and ECHR, is that if every state uses this strategy, precedent-based arguments are likely to predominate. Even if one state has an interest in flexibility in a given case, states, in the aggregate, are likely to favor predictability over flexibility, and a de facto doctrine of precedent will likely emerge.73 This is reinforced by the normative power of oft-cited precedent (discussed below), which may make erasing the prior interpretation nearly impossible.
A Jurisprudential Account
But all of this assumes that when an argument is made that a prior interpretation dictates a current one, that argument carries some independent additional weight and has some authority beyond the reasoning attached to it. Under the rationalist account, this extra weight may just reflect an implicit understanding of the system-value of precedents for achieving the relevant actor’s goal. But from a jurisprudential standpoint, it might be that the authority of precedents inheres in legal argumentation.
Precedents carry whatever weight or authority they have within a legal argument. As noted above, precedent might best be seen as the burden a prior interpretation of a rule places on future arguments about that rule. In the absence of any prior interpretation, an interpreter has a lot of latitude to choose a particular interpretation of a rule. Evidence of a prior interpretation seems to change that equation. As a matter of reasoned legal argument, such an interpretation cannot be ignored. Depending on a variety of factors that might give the prior interpretation greater legal authority—the prestige of the prior interpreter, the quality of the legal reasoning behind it, its perceived adherence to other prior interpretations or coherence within the system—that decision might be brushed aside, distinguished, narrowed, adopted, or extended, but it must be dealt with. Failing to do so might be seen as arbitrary and a violation of rule of law norms.74 This effect is compounded the more the particular prior decision is considered and cited.75 The greater the frequency of citation, the harder it is to ignore the decision, and the greater the burden on current interpretation.76
Moreover, the discursive power of precedent may have normative force. Common to many theories of law is a view that one of law’s core principles or qualities is that it treat like situations alike. Lon Fuller describes consistency as part of the internal morality of law,77 Ronald Dworkin’s law as integrity denies the legitimacy of checkerboard laws that treat like cases differently,78 and Tom Franck describes coherence and adherence as key factors in the perceived legitimacy of laws.79 From this standpoint, precedent’s pull can be seen as a direct articulation of rule of law norms. If like cases must be treated alike, future decisions must at least make reference to prior ones.80
A related jurisprudential argument often made in support of precedent is reliance, that law must protect the reasonable expectations of the governed.81 It might seem bizarre to suggest that states have a reliance interest in the decisions of international tribunals that they have so deliberately denied precedential effect, but such arguments are sometimes made.82 (States are more likely to argue that they relied on the precedent set by prior state acts than a prior tribunal decision.83) More often, the argument about reliance on prior decisions is made on behalf of individuals rather than states, either in the human rights or investment protection context. It is essentially an argument against state prerogative. Invocation of the legality principle in the international criminal context may contain a version of this argument. Some notion that individuals should be able to rely on the prior decisions of international criminal courts may explain why the International Criminal Court is the sole international court authorized by treaty to look to its prior decisions as a source of law.84
Whether the argument is about treating like cases alike or concerns about reasonable reliance, these jurisprudential arguments suggest that it is the most proximate and similar decisions—from the same body or actors or on the same issue—that will carry the most weight. The easier it is to distinguish the context, the less weight an interpretation will carry. It also suggests that the less clear the precedent and the more ad hoc the interpretation appears to be, the easier it will be to distinguish. This helps explain why judicial interpretations, which are usually clearer and nested within a body of jurisprudence, seem to become precedents so much more rapidly than interpretations derived from state practice, which are often purposely ambiguous.85
A Sociological Account
But for this jurisprudential account to have force, someone must actually believe in it or have some other incentive to abide by it.86 Nor can the jurisprudential account on its own choose between different sources of precedent. Prior interpretations might have weight, but which ones: judicial opinions, state practice, expert reports? It is here that a sociological account of the actors who invoke and respond to arguments from precedent becomes essential. This sociological account has so far been neglected in the literature on international precedent, but it is this account that provides the key to understanding the operation and effectiveness of the other two. It explains why invoking precedent self-interestedly may get a response and why the jurisprudential account may exert some independent pull. In essence, the sociological account provides the context of the game in which precedent-based moves will either succeed or fail.
Specific actors may be trained to see certain sources an authoritative. Lawyers, particularly those trained in a common law tradition, are trained to seek out, read, and argue from judicial decisions.87 Members of the military may be trained to look to historical combat actions for lessons. Specific actors may also belong to professional communities that respond to those sources or expect reference those sources. Lawyers, for example, might experience professional opprobrium or sanction for failing to cite relevant precedents. And different actors may face a range of social and political incentives to cite particular sources. Politicians, for example, will have incentives to cite precedents that will help sway voters in their favor.88
Take the example of lawyers very generally. Lawyers are indoctrinated with rule of law principles, principles which, in turn, are embodied in legal professional ethics. To the extent they work with other lawyers, particularly domestic lawyers, they may be expected to argue from judicial precedent. Within a legal organization, arguments that follow the professional script and reference judicial precedents will be rewarded. Arguments that seek to be overly creative or iconoclastic might not. Given their skill sets, judicial precedents may be more readily available to them than other sources.
Most of all, when working with non-lawyers, arguments from judicial precedent may enhance the lawyer’s stature. Lawyers as a professional group have specific sources of political and social capital that they can use to maintain their importance and relevance in relation to other societal actors.89 Among these is lawyers’ purported expertise in interpreting and applying complex legal sources. Lawyers, seeking to maximize their own power and authority vis-à-vis other international actors, will want to emphasize the value of precedents and their unique ability to understand them.
In other words, lawyers at the U.S. State Department or Defense Department may argue that precedents need to be followed (a) because they believe that rule of law requires it, (b) because they fear formal or informal professional or group sanction (i.e., shunning) if they fail to adhere to it, or (c) because arguing for precedent reinforces their authority within decision-making circles.90 One need not choose between these reasons; they reinforce one another.
Of course, the actual story is much more complicated. Lawyers are not all the same. Hailing from different parts of the world, they may have been trained differently. They may belong to different organizations with different organizational cultures, priorities, and scripts. A lawyer in a foreign ministry may see the world differently from a military lawyer or a lawyer at the ICRC. 91 Or they may belong to different epistemic communities.92 The results of these differences, including how lawyers interact with other actors in a community of practice, may go a long way towards explaining different patterns of precedent or different ways of arguing from precedent in different areas of international law.93 Scholars have only begun to study the sociology of these actors.94 Much more work needs to be done.
Along these same lines, when the issue of past AB rulings as precedent came up over on Twitter, Harlan offered the following:
"Something I've written about and am writing about now - the problem is that the formal terms are red herrings. How much weight precedent has in any system is really cultural. In that sense, what everyone is really fighting about is how constrained to *feel* about prior opinion."
He also said this: "Arguing against terms like precedent and cogent reasons can have the effect of freeing others from a prior decision's burden, but perhaps paradoxically, changing the terms to something looser might change nothing at all."
