Keith Mack
The creation of laws by precedent is a fundamental aspect of common law legal systems. Precedent, in this context, refers to past judicial decisions that serve as a guide for future rulings, promoting consistency and predictability. This concept is rooted in the principle of stare decisis, which translates from Latin to to stand by things decided. While there are nuances and limits to the application of stare decisis, it generally holds that courts and judges should honour precedent. This means that judges are bound to interpret the law and issue rulings in alignment with earlier court decisions, particularly those made by higher-level courts within the same jurisdiction. There are two types of precedent: binding precedent, which courts are required to follow, and persuasive precedent, which they may consider but are not obligated to adopt. The use of precedent in common law systems, such as the US judiciary, is in contrast to civil law systems, which are characterised by a greater emphasis on codified law and less on precedent.
| Characteristics | Values |
|---|---|
| Type | Binding precedent, Persuasive precedent |
| Definition | A judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases |
| Importance | Plays an important role in decision-making, aids judicial officers in referring to similar case laws, saving time and scrutinizing results |
| Common Law | Past judicial decisions serve as case law to guide future rulings, promoting consistency and predictability |
| Civil Law | Characterized by comprehensive codes and detailed statutes, with no emphasis on precedent, and where judges primarily focus on fact-finding and applying codified law |
| Stare decisis | Latin for "to stand by things decided", it is a foundational concept in the American legal system that holds that courts and judges should honor precedent |
| Super precedents | Certain legal opinions that are so fundamental to American justice that they are virtually permanent decisions and thus impervious to overruling |
| Null model | An argument against the use of precedent, as it may introduce bias and prevent judges from making creative innovations in the law |
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What You'll Learn
Binding precedent
Vertical stare decisis refers to the vertical application of binding precedent, where lower courts are strictly bound to follow the decisions of higher courts within the same jurisdiction. An example of vertical stare decisis is when the Seventh Circuit Court of Appeals applies a precedent set by the US Supreme Court. Horizontal stare decisis, on the other hand, refers to the principle that a court adheres to its own previous rulings. The US Supreme Court, for instance, adheres to its prior decisions unless there is a compelling justification to overturn precedent.
While binding precedent plays a crucial role in decision-making, it is important to note that there are arguments against its overuse. Some scholars argue that the influence of judicial decisions on future cases should be limited to keep the law "pure". They suggest that judges should focus on treating parties impartially and objectively, and that the law should have a democratic character, which may be compromised by the undue influence of precedent.
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Persuasive precedent
In the context of legal precedent, the term "persuasive precedent" refers to legal decisions that a court may consider but is not required or obligated to follow when deciding a case. In other words, it is a precedent that a court can choose to rely on if it finds the reasoning compelling. This is in contrast to "binding precedent", which courts must abide by and follow in their adjudication of a case.
Courts often turn to persuasive precedent when interpreting unclear laws or addressing "cases of first impression", where no prior binding authority exists, and the court must determine the applicable law for the first time. For instance, in federal systems, the division between federal and state law may result in complex interactions, and courts may look to persuasive precedent for guidance.
In common law systems, the use of persuasive precedent is fundamental, promoting consistency and predictability in future rulings. It is a key tool for judicial officers, aiding them in referring to similar case laws and saving time during the decision-making process. It can also affect people's perception of the content of the law without changing the law itself.
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Common law systems
Under the common law system, judges are required to follow binding legal decisions of prior courts. This is known as the doctrine of stare decisis, a Latin term that means "let the decision stand" or "to stand by things decided". In other words, past judicial decisions serve as case law to guide future rulings, promoting consistency and predictability.
In common law, there are two types of precedent that judges consider: binding and persuasive. Binding precedent is a precedent that a court must abide by in its adjudication of a case, while persuasive precedent is a precedent that a court may consider but is not required to follow. In certain instances, a case may be considered a "case of first impression", where there is no binding precedent, and judges are required to make a decision even without a past ruling to rely on.
The use of precedent in common law systems is based on the idea of having predictable and consistent outcomes in cases with similar facts and legal issues. By relying on past judicial decisions, judges can save time in their research and scrutinize results more effectively. However, critics argue that the practice of following precedent may introduce bias and limit judicial creativity in the law.
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Civil law systems
Civil law is regularly updated, with the goal of standardised codes being to create order and reduce bias in systems where laws are applied differently from case to case. Civil law draws from legislators' written decisions, whereas common law draws from institutionalized opinions and interpretations from judicial authorities and public juries.
In many countries, there is still considerable disagreement as to whether precedents should bind later courts. In the civil law tradition, precedents are often used to tip the balance in favour of particular outcomes. However, civil law codes must be changed constantly because the precedent of courts is not binding and because courts lack the authority to act if there is no statute.
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Consistency and predictability
In common law, precedent can be binding or persuasive. Binding precedent is a precedent that a court must follow in its adjudication of a case. Persuasive precedent is a precedent that a court may, but is not required to, rely on in deciding a case. In other words, courts are required to follow binding precedent and can disregard persuasive precedent.
The common law system is premised on the idea of having predictable and consistent outcomes to cases with similar facts and legal issues in question. Hence, the defining principle of common law is precedent, which is the requirement that judges must follow binding legal decisions of prior courts. Judges accomplish this by interpreting the law and issuing rulings in the same manner as these earlier court decisions.
In certain instances, there are cases that pose distinct facts or legal issues from all prior cases within their jurisdiction, and the other sources of law are either silent or ambiguous on the issue. This is known as a "case of first impression", and judges are required to make a decision on the issue even though there is no binding precedent.
While the doctrine of stare decisis is foundational to the American legal system, it is not usually employed in civil law systems because it violates the legislative positivist principle that only the legislature may make laws. Civil law systems are characterised by comprehensive codes and detailed statutes, with no emphasis on precedent, and where judges primarily focus on fact-finding and applying codified law.
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Frequently asked questions
A precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases.
Precedent is fundamental to common law legal systems, where it operates under the principle of stare decisis ("to stand by things decided"), where past judicial decisions serve as case law to guide future rulings, thus promoting consistency and predictability.
There are two separate types of precedent that judges consider: mandatory or binding precedent, and persuasive precedent. If precedent is binding, courts are required to follow those earlier decisions. Alternatively, courts are not obligated to follow persuasive precedent, but they may consider it to determine how courts in other jurisdictions resolve particular legal issues.
