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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

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

Disadvantages

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

Types of persuasive authority

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:

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