Precedent

A precedent or authority is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding subsequent cases with similar issues or facts.

It is a legal principle, created by a court decision, which provides an example or authority for judges deciding similar issues later. Generally, decisions of higher courts (within a particular system of courts) are mandatory precedent on lower courts within that system–that is, the principle announced by a higher court must be followed in later cases.

Does a precedent always have to be followed

Decisions of lower courts are not binding on higher courts, although from time to time a higher court will adopt the reasoning and conclusion of a lower court. Decisions by courts of the same level (usually appellate courts) are considered persuasive authority. That is, they should always be carefully considered by the later court but need not be followed.

A previously decided case that is considered binding in the court where it was issued and in all lower courts in the same jurisdiction.

Blackstone says, that a former decision is in general to be followed unless “manifestly absurd or unjust,” and, in the latter case, it is declared when overruled not that the former sentence was bad law, but that it was not law.

Essentials of a precedent

• the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions.
• the avoidance of undue restriction on the proper development of the law

Types of precedents

Binding precedent

a binding precedent (also 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 House of Lords in the United Kingdom. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Binding precedent relies on the legal principle of Stare decisis.

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 in any event.

Advantages

• Certain,
• Consistent,
• Precise,
• Flexible and
• Time-saving.

Disadvantages

• Rigid,
• Complex,
• illogical (The differences between some cases may be very small and appear illogical) and
• slow to grow (some areas of the law are unclear or in need of reform).

Persuasive precedent

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive authority may guide the judge in making the decision in the instant case.

Persuasive precedent may come from a number of sources such as

• lower courts,
• “horizontal” courts,
• foreign courts,
• statements made in dicta,
• treatises or law reviews.

Types of persuasive authority

• Lower Courts – A lower court’s opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.
• Higher Courts in other Circuits – A court may consider the ruling of a higher court that is not binding.
• Horizontal Courts – Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.
• Statements made in obiter dicta of a higher court, though not binding, will often be persuasive to lower courts.
• A Dissenting judgement – A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale. The judge can only opt to overturn the holding of a court lower or equivalent in the hierarchy, however. A district court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.
• Treatises, Restatements, Law Review Articles – Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings will vary widely with elements such as the reputation of the author and the relevance of the argument.
• Courts in other countries – An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example, Canada, Australia, or New Zealand) and to some extent the United States.

Case law

In common law systems this type of precedent is granted more or less weight in the deliberations of a court according to a number of factors:

• whether the precedent is “on point,” that is, does it deal with a circumstance identical or very similar to the circumstance in the instant case?
• when and where was the precedent decided – A recent decision in the same jurisdiction as the instant case will be given great weight.
• recent precedent in jurisdictions whose law is the same as local law.
• stems from dissimilar circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law.