Law
Doctrine of Precedent
The Doctrine of Precedent refers to the principle that previous court decisions should guide future rulings in similar cases. It is a fundamental aspect of the common law system, providing consistency, predictability, and fairness in legal decisions. Under this doctrine, lower courts are generally bound to follow the decisions of higher courts within the same jurisdiction.
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12 Key excerpts on "Doctrine of Precedent"
eBook - PDF- Stefan H. C. Lo, Kevin Kwok-yin Cheng, Wing Hong Chui(Authors)
- 2019(Publication Date)
- Cambridge University Press(Publisher)
For example, the Court of First Instance is bound by the decisions of the Court of Appeal, but the Court of Appeal is not bound by the decisions of the Court of First Instance. The requirement for lower courts to follow the decisions of higher courts in the same hierarchy is sometimes referred to as vertical stare decisis. As for decisions of courts at the same level or standing in the hierarchy (i.e., courts of co-ordinate jurisdiction), the Doctrine of Precedent could require that earlier decisions of the courts bind later decisions of the same court or another court of equal standing. This aspect of the doctrine is sometimes referred to as horizontal stare decisis. Decisions on Law as Precedent, Not on Facts The Doctrine of Precedent only applies in relation to decisions of courts on legal principles. In other words, decisions on facts do not bind later cases; a court is only bound by the court’s decision as to what the legal principle is. 129 Rationale for Doctrine of Precedent The main rationale for the Doctrine of Precedent is that it provides cer- tainty and consistency in the law. Consistent application of the law is an 129 See Chapter 4. 160 The Hong Kong Legal System important aspect of fairness. It would be an affront to justice if laws were applied arbitrarily to reach different outcomes in different cases, though the factual circumstances may be the same. Moreover, if the law is to act as a guide for the behaviour of persons in society, then there must be certainty in the law so that individuals know in advance whether their conduct would be lawful or not. That certainty and consistency are, generally speaking, desirable fea- tures of the law would not be contentious. What is more debatable is whether a strict Doctrine of Precedent is the only way (or necessarily the best way) for achieving certainty and consistency in the law.
eBook - ePub- Andrew Mitchell(Author)
- 2008(Publication Date)
- Routledge-Cavendish(Publisher)
4 The doctrine of judicial precedent This topic enables you:- To recognise how an important source of law – judicial law-making based on the Doctrine of Precedent, known as common law – contributes to the English legal system.
- To appreciate that there is a hierarchy of English courts and that this assists the process of precedent through the principle of stare decisis.
- To demonstrate the importance of law reporting in recording precedents.
- To develop knowledge relating to the nature of judicial precedent and how it works in practice.
- To understand the role of judges, building on earlier knowledge of the constitution and the separation of powers.
- To consider the doctrine of parliamentary sovereignty and the extent to which this is undermined by judicial law-making.
Judicial precedent is a system of law-making by judges rather than by Parliament: generally applicable decisions made by judges, referred to as precedents, are used as models for future cases, and these are developed on a case-by-case basis to establish areas of law. This process describes the growth of the common law. Therefore, judicial precedent is an important source of law and a core topic for any student of the English legal system.INTRODUCTION TO JUDICIAL PRECEDENT
The general idea of the precedent system is that the lower courts have to follow the decisions of the higher courts because these have precedent-making powers. This is referred to as the doctrine of stare decisis (which means ‘stand by what has been decided’
eBook - ePub- Jacqueline Martin(Author)
- 2014(Publication Date)
- Taylor & Francis(Publisher)
2 Judicial precedent2.1 The Doctrine of Precedent2.1.1 Stare decisis1 It is a fundamental principle that like cases should be treated alike.2 The Latin maxim stare decisis (stand by decisions of past cases) is the basis of the Doctrine of Precedent.3 Precedent, as operated in the English legal system, requires that in certain circumstances a decision on a legal point made in an earlier case MUST be followed.4 The doctrine is that:• all courts are bound to follow decisions made by courts above them in the hierarchy; and• appellate courts are normally bound by their own past decisions.5 An extreme example of this was seen following the decision in2.1.2 Original precedentRe Schweppes Ltd’s Agreement (1965), in which one judge in the Court of Appeal dissented. Later on the same day, when the same point of law was involved in a second case (Re Automatic Telephone and Electric Co Ltd’s Agreement (1965)), that judge said he was now bound to follow the earlier decision.1 Where there is no previous decision on a point of law that has to be decided by a court, then the decision made in that case on that point of law is an original precedent.2 Usually, when faced with the situation of having to form an original precedent, the court will reason by analogy. Cases that are nearest to it in principle will be considered, though they are not binding. If there is any parallel, the court may decide that the same type of principle should apply (Hunter and others v Canary Wharf Ltd and London Dockland Development Corporation (1995)).3
eBook - PDFThinking Like a Lawyer
A New Introduction to Legal Reasoning
- Frederick Schauer(Author)
- 2009(Publication Date)
- Harvard University Press(Publisher)
Under the doctrine of stare decisis, a court is ex-pected to decide issues in the same way that it has decided them in the past, even if the membership of the court has changed, or even if the same members have changed their minds. Like vertical precedent, stare decisis—horizontal precedent—is about following the decisions of oth-ers. But although both vertical and horizontal precedents involve follow-ing the decisions of others, the distinction between a court’s following the decision of a higher court and its following its own previous decisions is important enough in numerous contexts to be worth emphasizing even before we see just what the obligation to follow entails, and before we examine the complications that are involved when these obligations arise in actual practice. 3.2 Precedent—The Basic Concept The core principle of decision-making according to precedent is that courts should follow previous decisions—that they should give the same answers to legal questions that higher or earlier courts have given in the past. What counts as the same question will occupy much of our atten-tion, but first we need to examine just what the obligation to follow a precedent is. In doing so, it will help to introduce some additional clarify-ing terminology. So although in the case of vertical precedent the earlier decision comes from above, and in the case of horizontal precedent— stare decisis—it comes from the same court in the past, in both instances a court is expected to follow an earlier decision in another case. For the 37 T H E P R A C T I C E A N D P R O B L E M S O F P R E C E D E N T sake of clarity, we can label the court now making the decision the in-stant court and its current controversy the instant case. And we can call the previous court (including the same court in an earlier case) the prece-dent court and its decision the precedent case.
eBook - PDF- Maurice Adams, Jacco Bomhoff(Authors)
- 2012(Publication Date)
- Cambridge University Press(Publisher)
It just depends on what we understand by precedent – or reasoning with previous decisions. A working definition of precedent In order to make my project feasible, I have finally adopted a rather pragmatic definition of precedent: ‘a previous judicial decision that has normative implications beyond the context of a particular case in which it has been delivered’. and binding nature of a source of law it could never have even de facto derogative consequences’ (Constitutional Court, Case Pl. ´ US 36/01, judgment of 25 June 2002, N 80/26 SbNU 317, translation into English available at www.usoud.cz/view/726). 90 On the other hand, Peczenik’s contribution to the volume (see fn. 80) makes an elabo- rate effort to distinguish between various types of ‘bindingness’, reflecting treatment of precedent in different legal systems, and MacCormick and Summers in ‘Further Gen- eral Reflections and Conclusions’, pp. 536–542 carefully analyse ‘significant remaining differences’. 91 To my mind, Dawson, The Oracles of Law, provides the most complete account of the development of the role of judges and case law in England, Rome, France and Germany and documents well the importance which case law has always had in the civil law tradition. Z´ enati, fn. 41 at 5–109 gives a detailed account focused on France. 68 jan kom ´ arek The idea of a judicial decision seems rather straightforward – a decision that stems from a court deciding in a judicial capacity. The question of what distinguishes courts from other institutions and makes their deci- sions ‘judicial’ is nevertheless more complex.
eBook - PDF- Ian McLeod(Author)
- 2020(Publication Date)
- Red Globe Press(Publisher)
Case-law and precedent Having read this Part you should understand the basic concepts of the English doctrine of binding precedent and appreciate how those concepts are applied in practice. More particularly, you should be able to understand how the doctrine attempts to balance the interests of flexibility and predictability. You will also gain a comparative insight from considering the practice of the European Court of Justice. Part II 125 Chapter 8 An introduction to the doctrine of binding precedent Introduction Briefly, the doctrine of binding precedent states that all courts bind all lower courts, and some courts, at least to some extent, also bind themselves. The hierarchy of the courts, which was outlined in Chapter 3, clearly becomes relevant in the present context. In this Part we will examine the operation of the Doctrine of Precedent in some detail, both in conceptual terms and through each of the superior courts. Bindingness, flexibility and the rule of law First, and without wishing in any way to bypass the discussion which follows, it is worth commenting that a proper understanding of the Doctrine of Precedent will lead you to the conclusion that in many cases the bindingness, which is alleged to be the basis of the doctrine, is more apparent than real. In the words of Carleton Kemp Allen: ‘Whatever merits precedent may possess (and they are many) certainty is the very last quality which can be attributed to it … Nobody knows, until a case has come to trial, what will emerge from all the “authorities” … Every lawyer is aware of points on which the authorities are conflicting and obscure, and as precedents multiply, so do the conflicts and obscurities.’ ( Case Law: An Unwarrantable Intervention (1935) 51 LQR 333.) Secondly, it follows that a central task facing any discussion of the doctrine of binding precedent is to identify as precisely as possible the extent of the discretion available to the judges in cases.
- Frederick L. Morton(Author)
- 2002(Publication Date)
- University of Calgary Press(Publisher)
A question arises: Just where does a court find these rules? There are two chief sources of law: statutes and precedents. The former, of course, come from the legislature which consists of the elected representa-tives of the people. The latter come from the courts; precedents are the prod-ucts of earlier decisions. To the latter, we should add the decisions of an increasing number of administrative bodies and the precedents established thereby, but of this matter we shall speak later. Most everybody knows what a statute is, but what is a precedent? In a general, non-legal way, precedent plays an important role in our lives. Often, we do things as our parents did them and cite their experience as precedent for what we do now; out of some continuing or repetitive situa-tion there comes a rough rule of thumb. When a father is questioned as to 18 Shapiro Public Law and Judicial Politics, p. 374. 19 Ibid. 396 Precedents, Statutes, and Legal Reasoning why he spanked his son for some infraction of the household rules, he might reply that as a boy in like circumstances he had been spanked as had his father before him. He might go on to explain that such treatment was an application of the rule of experience, Spare the rod and spoil the child.... ... In all of these instances, there is the application of a rule of experience to a given situation. These are homely examples. Clubs, business organi-zations, boards of trustees, student groups all have their rules, some writ-ten, some unwritten, which are often invoked as precedent for doing, or not doing, one thing or another. And a precedent here is defined by Webster as something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same or analogous kind. Judicial Precedent A judicial precedent is defined in the same dictionary as a judicial deci-sion, a form of proceeding, or course of action that serves as a rule for future determinations in similar or analogous cases.
eBook - PDF- Hanina Ben-Menahem, Neil S. Hecht(Authors)
- 1999(Publication Date)
- CRC Press(Publisher)
4 AUTHORITY, PROCESS AND METHOD from common law, which was generated from rulings inductively on a case by case basis.12 In case law of this kind, facts create the law -ex facto oritur ius. English law is the model of stare decisis,13 law distinguished by consis tent and stable rulings. The English system spread to all the countries where common law is prac ticed, and today the principal feature differentiating English and American law from other modem legal systems is the decisive influence of precedent in shaping the law.14 Cardozo noted that “stare decisis is at least the everyday working rule of our law.”15 There has been much discussion recently in the United States about weakening the principle of binding precedent, but it still has a strong hold on the American judicial system.16 3. Precedent in Israeli Law During the British Mandate period, the doctrine of binding precedent was adopted by the courts in Mandatory Palestine as a matter of course, both with regard to precedents set by local courts, and those set by British courts. The principle of binding precedent became part of the legal system by force of article 46 of the Palestine Orders in Council 1922-1947. Though not without misgivings, this state of affairs continued after the establishment of the State of Israel, until a bench of five judges handed down a supreme court ruling formally adopting the principle of binding precedent in its entirety.17 This ruling was later interpreted as follows: “It is clear and beyond doubt that the court unconditionally upheld English law in the matter of the binding power of precedent.”18 A lone dissenting opinion, opposed to the absolute nature of the ruling, was rejected.19 12 Allen, op. cit., pp. 161-162. 13 J. Salmond, op. cit., (note 11 above), esp. pp. 174ff. 14 Edwin W. Patterson, Jurisprudence (New York: 1953), p. 300. 15 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: 1921), p.
- Michael P. Fix, Benjamin J. Kassow(Authors)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
2 The Role of Precedent A Brief History To place our work in context, it is important to provide a brief discourse on the role of precedent in American law. To do this it is necessary to understand how the modern concept of stare decisis – or the belief that courts should view the decisions of higher courts (and in some cases their own precedents) as binding authorities – developed. The view of stare decisis as a hard rule of judicial decision-making is not traceable to a single point in history. Rather, it evolved over hundreds of years of English jurisprudence. While there are records of judgments made in accordance with custom and tradition as far back as the sixth century (Lewis 1930a), it was not until the eighteenth or nineteenth century that modern notions of precedent as binding authority truly developed. Thus, our brief discourse on the role of precedent in American law requires that we first delve into the history of precedent in English common law from whence our legal traditions have their origins. 2.1 THE ORIGINS OF STARE DECISIS The Plea Rolls represent the earliest records of English court proceedings. These documents were not public and only certain individuals had access to them (Lewis 1930a). It is unclear from the historical record when officials first began recording court proceedings in the Plea Rolls, although some remain today from as early as the twelfth century (Richardson 1922). The few remaining Plea Rolls, some records of litigation in monastic annals (Maitland 1907), and other miscellaneous sources of scattered records illustrate that attempts at preserving case law prior to the thirteenth century were haphazard at best. Therefore, while the historical evidence shows that some court records were clearly kept, the lack of a systematic method for doing so indicates that they were not used in the same way they are in the modern day. 13
- F.L. Morton, Dave Snow(Authors)
- 2018(Publication Date)
- University of Calgary Press(Publisher)
Again, the horses, the wagon, and the hides, are turned over to the innkeeper; and again, a fire occurs during the night and the property of the guest is burned up. The owner of the property then sues the innkeeper for damages. The situation here is exactly the same as in the earlier case. The judge in the second case, according to the theory, will apply the rule or principle (which is the precedent) and decide in favour of the plaintiff. The precedent or authority of the first case is precise and fits the facts of the second case very nicely. This application by courts of rules announced in earlier decisions is spoken of as stare decisis, which means “let the decision stand.” This has been, and is, a fundamental characteristic of the common law, although … it is the practice upon occasion for a high court to overrule its own precedents. Obviously, a legal system in which judges could decide cases any which way, manifesting prejudice, whimsy, ignorance and venality, each decision being an entity in itself unconnected with the theory, practices and precedents of the whole, would be a sorry system, or, one might say, no system at all, and a source of little comfort either to attorneys or litigants. Speaking of stare decisis many years ago, Judge Maxwell said: “In the application of the principles of the common law, where the precedents are unanimous in the support of a proposition, there is no safety but in a strict adherence to such precedents
- Catherine Barnard, Okeoghene Odudu, Catherine Barnard, Okeoghene Odudu(Authors)
- 2009(Publication Date)
- Hart Publishing(Publisher)
56 G Lawson, ‘The Constitutional Case Against Precedent’ (1994) 17 Harvard Journal of Law & Public Policy 23. Precedent and Judicial Lawmaking 411 C. How Do Previous Supreme Court Decisions Bind? ‘Real-Life’ Precedent and the Context of a Case (i) Distinction between Legislated Rules and Those ‘Implicated’ in Precedent Almost everybody writing about precedent in the common law tradition stresses a fundamental distinction between reasoning with precedent and reasoning on the basis of the legislation. To recall Austin: [T]he primary index to a rule created by a judicial decision, is not the grammatical sense of the very words or terms in which the judicial decision was pronounced by the legislating judge: And, a fortiori , it is not the grammatical sense of the very words or terms in which the legislating judge uttered his general propositions. 57 These would tell us little about the rule which the judicial decision implies, says Austin. According to him, [f]rom the very beginning of our endeavour to extricate the implicated rule, we should construe or interpret the terms of his entire decision and discourse, by the nature of the case, which he decided; and we should construe or interpret the terms of his general or abstract propositions by the various specific peculiarities which the decision and the case must comprise. 58 Austin highlights the difference between the text of the decision and the rule which is ‘implicated’ in it. This would not seem so different from a legislated rule, which must also be deduced from the text of a provision. However, crucial for reasoning with precedent is the importance of the case—a real-life situation—for the extrication of the rule from the text of the judicial decision. For Austin, it does not matter that judges formulate decisions in general or abstract terms, since only the context of the case can give precise meaning.
eBook - PDFParchment, Paper, Pixels
Law and the Technologies of Communication
- Peter M. Tiersma(Author)
- 2010(Publication Date)
- University of Chicago Press(Publisher)
As Michael Sinclair has observed, referring specifically to the footnote in Carolene Products , “Legal actors in lower decision-making roles take the reasons and verbal Judicial Opinions and the Concept of Precedent 211 formula of higher courts as governing, . . . following authoritative words, rather than rational analysis.” 177 Obviously, the point that I am making can be exaggerated; there are many modern cases in which American courts do not textualize their hold-ings so clearly, and it would be foolhardy for law schools to stop teaching traditional legal reasoning. But it is true that, in general, English judges and lawyers seem to concentrate on the concepts and reasoning contained in precedents. Their aim is to figure out what the judges meant and why they decided the cases as they did. To do so, they need as much evidence as possible, hence the lengthy quotations. Modern American judges and lawyers are looking more closely at the exact words that the judge wrote in the precedential opinion. They therefore concentrate on extracting critical excerpts of text that they regard as authoritative. More and more, Ameri-can legal professionals are reading cases in a way that resembles how they read and interpret statutes. The Publication Requirement Recall that in England, with some limitations, unreported (that is, unpub-lished) decisions can be cited in most courts. The advent of online data-bases in England has made reference to unreported decisions even easier and induced the House of Lords to adopt a rule that discourages citing an unpublished opinion. 178 In other English courts, however, virtually any ju-dicial decision has the potential of functioning as a precedent. The concern of the law lords was that the rise of legal databases on the Internet, which contain many unpublished cases, would cause them to be inundated with precedents. This issue had already been raised in the United States at the end of the nineteenth and beginning of the twentieth centuries.
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