Precedent Based Law
Rolando Kumar
Precedent is a principle or rule established in a legal case that becomes authoritative to a court or other tribunal when deciding subsequent cases with similar legal issues or facts.[1][2][3] The legal doctrine stating that courts should follow precedent is called stare decisis (a Latin phrase with the literal meaning "to stand by things decided").[4]
Case law, in common-law jurisdictions, is the set of decisions of adjudicatory tribunals or other rulings that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law, which is guided by previous rulings, for example, previous decisions of a government agency. Essential to the development of case law is the publication and indexing of decisions for use by lawyers, courts, and the general public, in the form of law reports. A precedent is a historical setting example for the future (though at varying levels of authority as discussed throughout this article), some become "leading cases" or "landmark decisions" that are cited especially often.
In contrast, civil law systems adhere to a legal positivism, where past decisions do not usually have the precedential, binding effect that they have in common law decision-making; the judicial review practiced by constitutional courts can be regarded as a notable exception.
Stare decisis (/ˈstɛərri dɪˈsaɪsɪs, ˈstɑːreɪ/) is a legal principle by which judges are obligated to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed".[5] In a legal context, this means that courts should abide by precedent and not disturb settled matters.[5] The principle can be divided into two components:[6]
In the common-law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedent, which record how and why prior cases have been decided. Unlike most civil-law systems, common-law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts.[7] For example, in England and Wales, the High Court and the Court of Appeal are each bound by their own previous decisions. The Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely does so.
A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is wrong. Even if an intermediate judge issues a ruling inconsistent with existing or subsequent precedent, if the case is not vacated on appeal the decision will stand.[citation needed]
If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, the court may either hold that the precedent is inconsistent with subsequent authority, or that the precedent should be "distinguished" by some material difference between the facts of the cases. If that decision goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning, first of the High Court of Justice, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.
Judges may refer to various types of persuasive authority to reach a decision in a case. Widely cited nonbinding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England, or the published work of the Law Commission or the American Law Institute. Some bodies are given statutory powers to issue guidance with persuasive authority or similar statutory effect, such as the Highway Code.
In federal or multijurisdictional law systems, conflicts may exist between the various lower appellate courts. Sometimes these differences may not be resolved and distinguishing how the law is applied in one district, province, division or appellate department may be necessary. Usually, only an appeal accepted by the court of last resort will resolve such differences, and for many reasons, such appeals are often not granted.
Any court may seek to distinguish its present case from that of a binding precedent, to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish the decisions based on significant differences in the facts applicable to each case. Or, a court may view the matter before it as one of "first impression", not governed by any controlling precedent.[8]
Quite apart from the rules of precedent, the weight actually given to any reported opinion may depend on the reputation of both the court and the judges with respect to the specific issue. For example, in the United States, the Second Circuit (New York and surrounding states) is especially respected in commercial and securities law, the Seventh Circuit (in Chicago), especially Judge Posner, is highly regarded on antitrust, and the District of Columbia Circuit is highly regarded on administrative law.
The doctrine of vertical precedent states that each court is bound by the decisions of higher courts in its jurisdictional area or tribunal hierarchy.[4] Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. Thus, the lower courts are bound to obey precedent established by the appellate court for their jurisdiction, and all supreme court precedent.
[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.[9]
In federal systems the division between federal and state law may result in complex interactions. In the United States, state courts are not considered inferior to federal courts but rather constitute a parallel court system.
Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings.[16]
In law, a binding precedent (also known as a mandatory precedent or binding authority) is a precedent which must be followed by all lower courts 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 took over the judicial functions of the House of Lords in 2009. In civil law and pluralist systems, precedent is not binding but case law is taken into account by the courts.[17]
Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedent from past cases are applied in principle to new situations by analogy.
Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.[18]
In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.
Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the Supreme Court, and underneath are lower federal courts. The state court systems have hierarchical structures similar to that of the federal system.[19][20]
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