Gavin Howe
The concept of stare decisis, a Latin term meaning let the decision stand or to stand by things decided, is a foundational principle in common law systems, such as that of the United States. It dictates that past judicial decisions serve as case law to guide future rulings, promoting consistency and predictability in the legal system. These precedents can be either binding, meaning courts must follow them, or persuasive, meaning courts can consider them but are not required to do so. While stare decisis is not commonly used in civil law systems, which focus more on codified law, some mixed systems, such as those in Nordic countries, give persuasive authority to decisions made by their highest courts. This results in a body of case law that sets a precedent for future rulings.
| Characteristics | Values |
|---|---|
| Nature of case law | A judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases |
| Binding nature | Courts must follow binding precedent |
| Persuasive nature | Courts may consider persuasive precedent but are not bound to follow it |
| Stare decisis | Courts and judges should honour precedent, or the decisions, rulings, and opinions from prior cases |
| Vertical stare decisis | Decisions of higher courts take precedence over decisions of lower courts |
| Horizontal stare decisis | Decisions made by courts at a particular appellate level should provide precedent for cases heard by courts of the same appellate level |
| Super precedents | Legal opinions that are fundamental to American justice and are considered permanent decisions |
| Non-publication | Decisions of courts that are not available for citation as precedent because they are deemed to have less precedential value |
| Depublication | The power of a court to make a previously published order or opinion unpublished |
| Litigation | Litigation settled out of court generates no written decision and has no precedential effect |
| Common law systems | Precedent is a defining feature of common law systems |
| Civil law systems | Civil law systems do not emphasise precedent and judges focus on fact-finding and applying codified law |
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![Handbook on the Law of Judicial Precedents, Or, The Science of Case Law / by Henry Campbell Black. 1912 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
What You'll Learn
Binding precedent
In contrast, civil law systems place less emphasis on precedent and instead focus on comprehensive codes and detailed statutes, with judges primarily concerned with fact-finding and applying codified law. However, even within civil law systems, there may be exceptions where case law plays a more significant role, such as in the Nordic countries.
The principle of stare decisis, which means "to stand by things decided," is fundamental to understanding binding precedent. It dictates that courts and judges should honour and adhere to past decisions, rulings, and opinions from prior cases. This ensures consistency and predictability in the law.
However, it is important to note that not all precedents are binding. While vertical stare decisis asserts that higher court decisions take precedence over lower courts, the concept of horizontal stare decisis recognises that decisions made by courts at the same appellate level should also provide precedent for similar cases. Additionally, judges may sometimes deviate from precedent to avoid unjust outcomes, offering reasons or legal nuances to explain their decisions.
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Persuasive precedent
In the context of case law, a precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases.
In common law systems, precedent can either be binding or persuasive. Binding precedent refers to a precedent that a court must follow when deciding a case, while persuasive precedent is a precedent that a court can consider but is not required to follow.
When determining whether to follow a persuasive precedent, courts will consider the reasoning and principles behind the previous decision. They will also look at the similarity of the facts and legal issues between the past case and the current case. The persuasive precedent may be from a higher court or a different jurisdiction, and it may involve interpreting unclear laws or addressing novel legal issues.
While persuasive precedent is not binding, it can still have a significant influence on the court's decision-making process. It provides guidance and helps judges interpret and apply the law consistently and predictably. However, judges are not obligated to follow persuasive precedent if they believe it is inappropriate or unjust in a particular case.
The concept of stare decisis, which means "to stand by things decided," is closely related to the idea of persuasive precedent. Stare decisis holds that courts should respect and adhere to past decisions, rulings, and opinions from prior cases. While stare decisis is a foundational concept in common law systems, it may not be as prominent in civil law systems, which focus more on codified law and judicial fact-finding.
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Common law systems
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. When a similar case has been resolved, courts typically align their reasoning with the precedent set in that decision.
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, as the collective judicial decisions were 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, 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, precedent can either be something courts must follow (binding) or something they can consider but are not bound to follow (persuasive). Binding precedent refers to a precedent that a court must abide by in its adjudication of a case, while persuasive precedent refers to a precedent that a court may rely on but is not required to in deciding a case.
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Civil law systems
In civil law systems, precedents are often used to tip the balance in favour of particular outcomes and to illustrate how a legal point has been dealt with previously. When there is a sufficient level of consistency in case law, civil law courts treat precedents as a source of 'soft' law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law.
However, stare decisis is not usually a doctrine used in civil law systems, as it violates the legislative positivist principle that only the legislature may make law. Instead, civil law systems rely on the doctrine of jurisprudence constante, where if a court has adjudicated a consistent line of cases that arrive at the same holdings using sound reasoning, then previous decisions are highly persuasive but not controlling on issues of law. This doctrine is similar to stare decisis in that it dictates that a court's decision must lead to a cohesive and predictable result.
The mixed systems of the Nordic countries are sometimes considered a branch of civil law. In Sweden, for example, case law arguably plays a more important role than in some continental civil law systems. The two highest courts in Sweden, the Supreme Court and the Supreme Administrative Court, have the right to set precedent with persuasive authority on all future applications of the law. Some mixed systems, such as Scots law in Scotland, South African law, and the law of Quebec and Louisiana, do not fit neatly into the civil vs. common law dichotomy.
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Mixed systems
Other mixed systems include Scots law in Scotland, South African law, the Laws of the Philippines, and the law of Quebec and Louisiana. These mixed systems do not neatly fit into the civil law vs. common law dichotomy. For instance, Scotland has a unique system combining elements of an uncodified civil law dating back to the Corpus Juris Civilis and its own common law that predates the Treaty of Union with England in 1707. This Scottish common law is founded on the customary laws of the tribes that once resided there.
Guyana and Saint Lucia, former British colonies, also have mixed systems of common law and civil law. Common law, deeply rooted in stare decisis ("to stand by things decided"), is a legal system that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. In common law jurisdictions, such as those influenced by English common law, precedents are maintained over time through court records and historically documented in collections of case law known as yearbooks and law reports.
The doctrine of stare decisis, central to common law, holds that past judicial decisions serve as case law to guide future rulings, promoting consistency and predictability. In common law, precedent can be binding, meaning courts must follow it, or persuasive, where courts can consider it but are not bound to follow it. In contrast, civil law systems are characterised by comprehensive codes and detailed statutes, with less emphasis on precedent. Instead, civil law systems focus on fact-finding and applying codified law, and they rely on the doctrine of jurisprudence constante, where consistent holdings using sound reasoning from previous decisions are highly persuasive but not controlling.
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Frequently asked questions
A precedent is a judicial decision that acts as an authority for courts when deciding similar cases in the future.
Case law refers to the collection of precedents and legal principles established by previous cases. Case law is fundamental to common law systems, where it guides future rulings, making the law more predictable and consistent.
Stare decisis is a Latin term that means "let the decision stand" or "to stand by things decided". It is a foundational concept in the American legal system, where courts and judges should honour precedent.
While precedent is important, it is not always binding. In some cases, judges may choose to ignore or overturn previous rulings if they believe following them would lead to unjust outcomes. This is particularly true when the circumstances of a case have changed over time, for example due to new technologies or demographic shifts.
