What Is a Legal Precedent

In law, a binding precedent (also known as a binding precedent or binding authority) is a precedent that all lower courts must follow under common law legal systems. In English law, it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which assumed the judicial functions of the House of Lords in 2009. In civil law and pluralistic systems, precedents are not binding, but case law is taken into account by the courts. A counter-argument (in favour of the benefits of stare decisis) is that if the legislature wishes to amend case law (with the exception of constitutional interpretations) by law, it is empowered to do so. [58] Critics sometimes accuse some judges of selectively applying the doctrine, citing in support of precedents that the judge supported anyway, but ignoring them in order to alter precedents with which the judge disagreed. [59] Despite their appeal, the presentation of the “underlying principles” faces three major difficulties: (i) the breadth of the distinction; • taking into account the role of rations; and (iii) maintaining the distinction between precedent and analogy. The initial difficulty arises from the fact that the distinction is not limited to the application of the justification provided by the earlier decision. Any good argument may form the basis of the distinction, for example by showing that the new facts in the subsequent case provide considerations that outweigh the original justification: it is not that the original justification is not applicable to the new facts, it is simply that these facts raise additional considerations that are more convincing. Subsequent courts therefore go beyond what was done in the earlier decision to decide whether to distinguish the subsequent case. According to the literal rule, the judge should do what the law dictates, rather than trying to do what he thinks it means.

The judge should use the ordinary simple meaning of the words, even if it leads to an unfair or undesirable result. A good example of problems with this method is R. v. Maginnis (1987),[44] in which several judges found several different meanings of the word in dictionaries in separate opinions. Another example is Fisher v. Bell, which concluded that a merchant who placed an illegal item with a price tag in a storefront did not make an offer to sell because of the specific meaning of “offer to sell” in contract law, but merely an invitation to be treated. Following that case, Parliament amended the statute in question in order to eliminate this discrepancy. In general, we speak of a precedent: any court may attempt to distinguish its present case from that of a binding precedent in order to reach a different conclusion. The validity of such a distinction may or may not be recognized on appeal. An appellate court may also propose an entirely new and different analysis from that of the lower courts and may or may not be bound by its own previous decisions or, in any event, it may distinguish those decisions on the basis of significant differences in the facts applicable in each case.

Or a court may view the case before it as a “first impression” that is not subject to precedent. [7] In exceptional circumstances, a superior court may strike down or overturn mandatory precedents, but will often attempt to distinguish the precedent before it is overturned, thereby limiting the scope of the precedent. The British House of Lords, as the last court of appeal outside Scotland before being replaced by the Supreme Court of the United Kingdom, was not strictly bound to always follow its own decisions until London Street Tramways v. London County Council [1898] AC 375. After that case, after the Lords had made a decision on a point of law, the case was closed unless Parliament made a legislative amendment. This is the strictest form of the doctrine of stare decisis (a doctrine not previously applied in common law countries where there was a little more flexibility for a court of last resort to consider its own precedents). The second principle, convincing precedents, reflects the general precedents on which a court can base all its decisions. [5] In contrast, precedents have practical authority because they are considered part of the law. Simply put, the law is what the court said because the court designated it as such. However, the wording is oversimplified, as (a) what the court has done, not what it has said, may change the law, and (b) there are generally a number of restrictions on the capacity of a decision to form the law (depending on the content of the decision and the status of the institution, who hits them). An important consequence of the practical authority of precedents is that, since courts are required to apply the law and previous decisions have practical authority over the content of the law (i.e.

what the law is), subsequent courts are required to follow the decisions of previous cases. This is commonly called the doctrine of precedent or stare decisis (i.e. sticking to things decided). The problem with these two propositions is that the practice of the distinction does not correspond to either of these limitations: while courts examine the earlier decision to see whether the relationship can be reinterpreted, they also introduce distinctions without resorting to the views of the previous court; And they usually do not approach the task of discernment, as if there were a presumption against it. In legal practice, therefore, there are no such legal restrictions for the subsequent court. A distinction therefore does not seem easily compatible with the interpretation of rations as a creation of binding legislation. (See also Perry 1987, 237–9 for the distinction.) Although the need for legislation is often invoked to justify a precedent, the content of the argument usually boils down to concerns about equality or reproducibility. If the law has resolved an indeterminacy in the past in an (acceptable) way, then precedent helps to ensure that future litigants are treated (un)favorably than previous litigants, and therefore everyone is treated equally. In addition, if the application of the law is indeterminate due to the nature of the value conflict involved or the nature of the decision-makers, it is desirable that court decisions set precedents to make the law more replicable in the future. In 1976, Richard Posner and William Landes coined the term “superprecedent” in a paper they wrote about testing the theories of precedents by counting citations.

[18] Posner and Landes used this term to describe the influential effect of a cited decision. The term “superprecedent” was then associated with another issue: the difficulty of reversing a decision. [19] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court`s decision in Planned Parenthood v.