A law that that has been in force since 2005 (Federal Courts Proclamation 454/2005) declares that interpretations of law, rendered by the Cassation Division of the Federal Supreme Court (hereinafter referred to as CDFSC), are binding on all federal and state courts. However, according to the same law, this does not prevent the CDFSC from providing a different interpretation in the future.
The binding nature of precedents is a fascinating topic. After learning that this was raised in one of the electoral debates in 2010, I have decided to put my thoughts in writing. Several questions should be addressed if one is to have a clear position on the matter.
Should interpretations of law provided by higher courts be binding on lower courts? If so, should lower courts be obliged to follow only interpretations of the CDFSC or should they also follow the interpretation of law given by the ordinary appellate divisions of the federal supreme and high courts? If at all it is desirable that courts follow interpretations of law provided by higher courts, how do you make sure that that is so--is it by passing a proclamation which declares precedents to be legally binding? Is it desirable that the CDFSC is not bound by its previous interpretation?
There is one characterization of law which has already become a cliché: that in law two plus two is not necessarily four. To a large extent it is a characteristic which is unfortunate, particularly in the area of commerce. To a limited extent, however, the ambiguity, uncertainty which this characterization is meant to portray is desirable and unavoidable. To the extent that it is undesirable, therefore, attempts should be made to ensure that legal consequences of alternate courses of actions are predictable; that the sum of two and two is predictable whether it is 4 or 999.9. The question is: how do you ensure that the sum of two and two is the same whether it is Mekelle or Hawassa. Obviously having the same text of law is not the solution.
That is where the system of appellate review and the hierarchical structure of courts play important roles. One self-evident purpose of appeal is to correct errors made by lower courts. If that was the sole objective of the system we would have many federal supreme courts.
