Cecily Zamora
Case law is a collection of reported cases that form the body of law within a given jurisdiction. Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. In common law, precedent can either be binding, meaning that it is something courts must follow, or persuasive, meaning that it is something they can consider but do not have to follow. When determining which case law takes precedent, it is important to consider the facts of the case, the court that decided the case, and when it was decided.
| Characteristics | Values |
|---|---|
| Binding precedent | Precedent that a court must abide by in its adjudication of a case |
| Persuasive precedent | Precedent that a court may, but is not required to, rely on in deciding a case |
| Ratio decidendi | The grounds for the decisions taken in previous cases, which creates binding precedent |
| Obiter dicta | Non-binding observations or comments made by a judge that may be cited as persuasive authority in subsequent litigation |
| Stare decisis | The principle that past judicial decisions serve as case law to guide future rulings, promoting consistency and predictability |
| Jurisdiction | The level of the court and its jurisdiction will determine the effect of a court's decision on other courts |
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What You'll Learn
Binding precedent
When determining which case law takes precedence, judges must consider the ratio decidendi, or the grounds for the decisions taken in previous cases, to apply the precedents to the current case. This involves a thorough understanding of the facts and legal analysis of both the previous and current cases to determine if the circumstances and legal requirements match. It is important to compare different instances and determine if there are similar facts and legal issues to the current case. This process can be challenging, as it requires a comprehensive understanding of the law and the ability to navigate and analyse law reports swiftly.
In the context of federal and state law in the United States, the application of binding precedent can become more complex. When a federal court rules on an issue of state law, it must follow the precedent of the state courts under the Erie doctrine. However, when a state court rules on an issue of federal law, it is bound only by the rulings of the Supreme Court and not by lower federal courts, although some states may voluntarily consider themselves bound by lower federal courts' rulings.
While binding precedent plays a crucial role in common law systems, it is important to note that it can be distinguished, modified, or overruled under certain circumstances. Distinguishing a precedent involves finding specific factual scenarios or material differences in the subsequent case that make the previous decision inapplicable. A precedent may be modified by a higher court, which can change parts of the previous decision. Overruling a precedent occurs when a higher court finds that the previous decision is erroneous or overtaken by new developments or legislation.
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![The Law and Practice of a Case Stated by a Court of Summary Jurisdiction for the Opinion of the High Court. : With Precedents of a Case, Affidavits, Notices, and Bills of 1902 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
Persuasive precedent
One criticism of persuasive precedent is that it can lead to an overreliance on precedent by lawyers, rather than focusing on the merits of the case at hand. Philosopher Jeremy Bentham famously criticised the common law as "dog law", suggesting that judges make laws based on past cases in a reactive and retroactive manner.
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Ratio decidendi
The ratio decidendi is the principle that a case establishes, and it is the reason for the court's decision. It is the legal principle (law) used by the judge or judges to decide on the legal problem raised by the facts of the case. This legal principle is an abstraction from the facts of the case and is known as the ratio decidendi of the case.
The process of determining the ratio decidendi involves a thoughtful analysis of what the court actually decided, based on the legal points about which the parties in the case fought. It is a powerful tool for lawyers, as it can be used to force a lower court to make a decision that it may otherwise be unwilling to make, considering the facts of the case.
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Common law systems
In common law systems, precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports. After the American Revolution in 1776, Massachusetts became the first state to establish an official Reporter of Decisions. As newer states needed law, they often looked first to the Massachusetts Reports for authoritative precedents as a basis for their own common law.
The doctrine of precedent developed during the 12th and 13th centuries, emerging from collective judicial decisions based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law, as applied in civil cases (as opposed to criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as a means of developing the body of law recognizing and regulating contracts.
In common law systems, the presiding judge determines which precedents apply to a particular case. The example set by higher courts is binding on cases tried in lower courts. Lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case. Lower courts can also choose to overturn the precedent, but this rarely occurs.
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Civil law systems
In some civil law systems, such as in Sweden, case law plays a more important role. The two highest courts in Sweden, the Supreme Court and the Supreme Administrative Court, have the right to set precedents with persuasive authority on all future applications of the law. Similarly, appellate courts in Sweden may issue decisions that guide the application of the law, but these are not controlling and may be overturned by higher courts.
The civil law system in Scotland combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with its own common law. The Scottish approach to precedent involves seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law.
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Frequently asked questions
A legal precedent is a judicial decision that serves as an authority for courts when deciding identical or similar cases.
The judicial branch interprets the meaning of laws.
Binding precedent is a precedent that a court must abide by when deciding a case. Persuasive precedent is a precedent that a court may rely on but is not required to.
When a federal court rules on an issue of state law, the Erie doctrine states that the federal court must follow the precedent of the state courts.
Ratio decidendi refers to the key factual element or line of reasoning in a case that forms the basis for the court's final judgment. It creates a binding precedent.
