precedent as a source of law pdf

Supreme Court guts affirmative action in college admissions On top of this requirement, a legal system may reinforce its commitment to this ideal by requiring courts to treat the same reason as an obligation. As Kenneth Winston observes, judges may refrain from applying a law to a case that it clearly covers, for example, on the ground that there are features to the case that were not anticipated.39 Conversely, complexity in subsuming facts is a reason for the case to be seen as a hard one. The null model authorises courts precisely to dispense with this justificatory requirementnamely, of having to argue why they will depart from the decision of the earlier court. This number decreases when the amount of possible justified scenarios increases. The purpose of this analysis is to offer some of the tools that are vital for determining whether there is a model that should be preferred, and eventually for criticising the particular practice of precedents held by courts. Finally, the law should have a democratic character. On top of this nucleus, the later court may add extra weight if it considers that the dispute was, say, rightly decided, or it may add no further weight at all if the reverse holds. If there are no non-excluded reasons against following precedent, then the later court must follow the relevant precedentunless, as we will see, the precedent can be distinguished.77 Again, it is because of this combination of a first-order reason plus an exclusionary reason that we can think of the protected reason to follow precedent as giving rise to an obligation.78, Typically, the obligation of later courts to follow precedent applies whenever the precedent and present case are legally the same: whenever their similarities are relevant for the law, while their differences are not. Customs form another important part of the law. See eg A Marmor, Soft Law, Authoritative Advice and Non-binding Agreements (2019) 39 OJLS 507. Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies. But judges seldom adjudicate disputes simultaneously; rather, they do it over a period of time. See Twining and Miers (n 55) 284 for some instances in which the House of Lords has acted on this non-excluded reason. Before doing so, however, it is important to consider one important methodological caveat. In judicial precedent, similar cases have been decided in the past. On the idea of a second-order reason, see text to nn 64, 65 and 66 below. Nothing in the main argument turns on this point. Judicial precedent or decision is the primary source of law. Both have been a debated topic in the literature. In Italy, see M Taruffo and M La Torre, Precedents in Italy in N MacCormick and R Summers (ed), Interpreting Precedents (first published 1997, Routledge 2016) 155: A judgment not applying a relevant precedent may be lawful in itself, since its lawfulness depends on its consistency with the statutory and constitutional provisions, not on its coherence with precedents.. Sources of law in jurisprudence - iPleaders My account, like that of many others,7 does not depend on a strict separation between vertical and horizontal stare decisis.8 As I will explain, I think this distinction is useful to capture those specific precedents that, for various considerations, certain courts must follow. By. Classification of legal sources of Law. The list of sources in Article 38 of the Statute is frequently criticised for being incomplete. Judicial precedents refer to the decisions given by courts in different cases. X. There is also the question of whether a precedent could lose its erga omnes force prospectively only. The purpose of this section is to present some of the tools that are vital for determining whether there is a mode that should be preferred, and for eventually criticising a specific practice of precedent held by courts. By contrast, in the robust version a later court has such a reason independently of the precedents correctness. This distinction is based on Stevens, Case-to-Case Arguments (n 58) 4357, who distinguishes between weak and strong versions of the principle treating like cases alike. Consistent with familiar terminology, I will call them persuasive and authoritative.4 These modes are not necessarily depictions of what particular courts do, but they provide us with a valuable philosophical foundation for assessing whether what these courts do is desirable or not. Supreme Court Backs Web Designer Opposed to Same-Sex Marriage Authors such as Arthur Goodhart offered tests where the purpose was to make the ratio more determinate, so that the distinction between the ratio and the obiter of a case may be useful in explaining precedential constraint. Binding effect of Precedent 5. In the introduction, I suggested that my aim is not to depict specific adjudicatory practices, for example, of either the civil law or the common law, but to provide a framework within which we may understand these practices. It means only that we need to keep the door open for courts to reach legally justified decisions even if they follow precedents known to be wrong. First, courts always have a reason to decide precedent-governed disputes by following precedent. PDF | On Aug 27, 2018, Marin Petkov and others published THE "SOURCE OF LAW" CATEGORY | Find, read and cite all the research you need on ResearchGate Under the persuasive mode, whenever a precedent-governed dispute arises, the later court has a bare reason to decide the same dispute in conformity with the precedent. Compared to other sources of law, precedent has the advantage of . Courts may outweigh the reason in favour of following precedent and act on a potentially more compelling reason, such as deciding the same dispute in a substantively correct way.103 This is not to deny the possibility that sometimes courts can have reasons as well for following wrongly decided precedentsthis is why I argued in favour of robust precedent-following. As Eva Steiner writes concerning French law: Explicit reference by a court to its own jurisprudence when giving a decision and, more generally, citation of previous cases is not allowed when these are meant to serve as a legal basis for the courts decision.16, Of course, French law does not exhaust the civil law tradition. But in order for the law to allow this, the law cannot suffer changes too frequently. I shall pursue the opposite strategy: the reason to follow precedent is content-independent, in the sense that later courts have it whether they agree with how the precedent was decided or not. On this view, the mere fact of a precedents existenceregulating the case at handis a reason for the later court to follow it. Share & spread the love Contents hide 1. Conformity to precedent is a distinctive means to advance the rule of law. When, by contrast, such a court has an authoritative reason, the court can either follow or distinguish the precedent by acting on a non-excluded reason. cf T Endicott, Vagueness in Law (OUP 2000) 191. It is the robust version that Frederick Schauer has in mind when he argues: if we are truly arguing from precedent, then the fact that something was decided before gives present value despite our current belief that the previous decision was erroneous.61, For Schauer, precedent-following entails the robust version. Digital Special Collections | University of Minnesota Law School On the disputed nature of the rule of law, see J Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)? (2002) 21 Law and Philosophy 137, 159; P Burgess, The Rule of Law: Beyond Contestedness (2017) 8 Jurisprudence 480, 481. Suppose, to simplify the argument, that in 2019 the Supreme Court of an imaginary country handed down a decision that many respected judges and scholars consider mistaken on good grounds. To do this, I posit what I will call the null model, under which courts are authorised to decide precedent-governed disputes without paying attention, in a normatively significant way, to relevant precedent. This provides uniformity of law. The Supreme Court ruled in a 237-page opinion that race . This suggests that fostering the rule of law is more a matter of degree than of kind, insofar as a legal system may tolerate exceptions to the various rule of law desiderata. Achieving stability is a matter of degree, for there is no threshold indicating how much time is required for the content of the law to become stable. (DOC) Precedent as a source of law | Hera Naqvi - Academia.edu Whether a norm is authoritative dependsat least for current purposeson whether it provides a protected reason for action; see eg Raz, The Authority of Law (n 12) 215. This mode, again, entails a reason for actionnamely, decide the present case by following precedentand an exclusionary reason not to act on certain conflicting reasons.88, One reason typically excluded from being acted upon by the later court is disagreeing with the precedents correctness. The argument needs to be qualified. See Stevens, Reasoning by Precedent (n 6) for the current state of this debate. The final decision, which affects equality but does not offer a justification, is legally justified. Let us start with stability and reliability. Can custom be law, even before it is recognized by authoritative legislation or precedent? Thus, for reasons external to the norm itself, there can be cases that fall within the norms scope, but which may receive a different treatmentdespite the fact that in virtue of the norms generality they should not.37, This difference of treatment can be explained by the discretionary element entailed in the application of a norm. Many of our normative practices are influenced by the force that past decisions exert on similar, future situations, in favour of reaching the same result as before. Sometimes, however, this fact does not exist. If an earlier court set a precedent that the later court knows to be wrong, following it will not make the later courts decision right. The relation between higher and lower courts need not be of adjudicatory hierarchyit could be of administrative hierarchy. This is the moderate strategy I shall pursue.32. Ascertain one purpose of statutory law. Precedent As A Source of Law And It's Advantages And Disadvantages Ascertain the purpose of case law. Stability and reliability are thus two sides of the same coin: what may advance the former may also promote the latter, and what may undermine the former may also affect the latter. In the common law, judicial decisions are generally given legal status,12 meaning courts can reach legally justified decisions by applying case law to the dispute at hand. One may argue that within this mode there exists a weak version in contrast to a strong one. The upshot is that the non-contingent reason to follow precedent is a minimum requirement of the rule of law. Finally, I will use the expressions relevantly similar and legally the same as equivalents. Check the source of law you think most affects people in their everyday lives: Why did you select this source of law? This reason could be very weighty if, say, the precedent originates from the highest tribunal in the land. A Dworkinian view of stare decisis was articulated by S Hershovitz, Integrity and Stare Decisis in S Hershovitz (ed), Exploring Laws Empire: The Jurisprudence of Ronald Dworkin (OUP 2006) ch 5. Take the House of Lords 1966 Practice Statement: precedents of that court are normally binding (on the same court), but they admit departures when it appears right to do so.53 It seems difficult, and perhaps self-defeating, to anticipate all the necessary and sufficient conditions for establishing when it is right for that court to depart from precedent.54 For this reason, a legal system will most likely delegate this determination on judges themselves, who will balance tailored justice with stability and reliability, often leaning towards the latteras the same House of Lords (today the UK Supreme Court) has shown over time.55. And the rule of law is an ideal worth pursuing. Custom is simply the practices and usages of distinctive communities. To begin with, one can imagine legal systems where courts do not pay attention, in a normatively significant way, to the ways in which similar disputes have been decided in the past. I will not be arguing that courts should always have an obligation to follow precedent, but only a pro tanto and non-contingent reason. It is here where judges come into play. Negative or exclusionary second-order reasons are considerations supporting not acting on certain first-order reasons.65 The combination of a first-order reason plus an exclusionary second-order reason is what Joseph Raz calls a protected reason.66 (I will return to this idea in the next section. The methodological approach I have adopted is vital for sorting out possible factual counterexamples. As such, this reason can be outweighed by a more compelling reason. But once these central features are picked, there is room for a sensible detachment from practicesee n 76 below. For legal theorists,law, justice and jurisprudence are dis-parate, though kindred phenomena. In order to avoid this, judges should not follow precedent. Judicial Precedent as a Source of Law - Legal PaathShala Share with Email. June 29, 202312:38 PM ET. How can this reason allow for various weights depending on whether the later court agrees with the substance of the precedent? Raz, The Authority of Law (n 12) 185; Lamond (n 7) 3; Schauer, Thinking Like a Lawyer (n 8) 58. In any event, for now we need only to bear in mind that the specific content of the obligation to follow precedent is a matter of discussion in the common law. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. For various reasons, most of which have to do with effective action-guiding and better coordination between courts, a legal system may restrict the scope of the precedents that later courts must follow. Thus, were the Court of Appeal to overrule one of its precedents because it appears right to do so (as in the Practice Statement), that decision would be incompatible with the authoritative mode. Horizontal stare decisis is the authoritative effect that precedents have on later courts of equivalent hierarchy. This conclusion is supported by the fact that, as we saw before, many civil law courts may reach legally justified decisions even if they have contravened or otherwise ignored relevant precedent. As suggested before, possibly a notable feature of the persuasive mode is that it is flexible, because it allows for different degrees of precedential constraint depending on the weight to be given to the reason in favour of following precedent. Although this is true, there can be grey areas, such as a legal system where the obligation of courts to follow precedent is not de jure but de facto.98 This situation can be problematic, for though, under a persuasive mode, the content of the law cannot be changedagain strictly speakingby how courts apply the law, courts can nevertheless lead people to think that applications of the law are themselves part of the law. In section 2, I argue that the practice of following precedent should not be taken for granted. Click below to download the Pennsylvania Law Weekly in PDF format. For a system preferring flexibility in the adjustment of the law, the authoritative mode might be the best answer. In relation to the civil law, see Merryman and Prez-Perdomo (n 17) 85. There is no denying that the law may offer less guidance, and thus affect reliability, without authoritative applications of it binding later courts. Invasin a la independencia y autonoma del juzgador? (2016) XXIX Revista de Derecho (Valdivia) 9; A Cadoppi, Il valore del precedente nel diritto penale (2nd edn, Giappichelli Editore 2014). But once this minimum requirement has been secured, there is yet another question that we need to ask ourselves. PDF Answers . I do not think, based on the relevant literature,48 that this claim is controversial. In effect, the more substantive ones conception of the rule of law becomes, the more disagreement it seems to produce.30 On the other hand, All substantive versions of the rule of law incorporate elements of the formal rule of law.31 In sum, certain formal demands are necessary conditions of the rule of law, while also being sufficient to ground precedential constraint. This debate between common law scholars has one consequence for our analysis. For a lower court to hand down a substantively correct decision, the Supreme Court would have to overrule its precedent and issue a new decision that is substantively correct. In a relevantly similar case, a later court would thus not be able to say, at least not without justification, that the same object is not a wheelchair had the earlier court decided that it was. This can affect reliability, for people rely on this de facto pattern instead of relying on the law itself.99. By deciding on the balance of reasons, I mean establishing the necessary and sufficient conditions for reaching a justified decision. cf L Green, Law as a Means in P Cane (ed), The HartFuller Debate in the Twenty-First Century (Hart Publishing, 2010) 22; Green, Law and the Role of a Judge (n 38) 335. Discussing Dworkins views on precedent, see also S Perry, Judicial Obligation, Precedent and the Common Law (1987) 7 OJLS 215, 2236. Since stability and reliability are intimately connected, I will focus on reliability to argue against the null model. Perry then offered another possible understanding of the practice. Accordingly, the civil law may share features of the authoritative mode, while the common law may share ones of the persuasive mode.76, Under the authoritative mode, whenever a precedent-governed dispute arises, the later court has a protected reason to follow precedent. Unlike the null model, these two modes are consistent with the rule of lawin fact, they are derived from this ideal. In more dramatic scenarios, as Raz writes, ones choice does make it right for one to pursue a goal which but for ones commitment to it would have been a wrong goal to pursue.68. Authoritative precedents 5.2. Legal Method 0 Comments What is a Judicial Precedent? In Latin-America, similar examples can be found in: art 3 of Chiles Cdigo Civil; art 218 of Uruguays Cdigo General del Proceso; and art 17 of Colombias Cdigo Civil. The same cannot be said, or at least not as simply,13 with respect to various countries in the civil law tradition. Stability is a state of affairs in which the content of the law of one country is settled over a considerable amount of time. (1) You will hear the terms "precedent" and "stare decisis" when case law is discussed. PDF Developing jurisprudence or creating chaos? Reflections on the Some say, for example, that the law should meet basic demands of fundamental rights.24 Others claim that the rule of law should go one step further and secure basic social rights.25, These various ways of conceiving of the rule of law have led many scholars to distinguish between formal and substantive versions of the rule of law.26 As Brian Tamanaha notes, formal theories focus on the proper sources and form of legality, while substantive theories also include requirements about the content of the law.27 However, as Tamanaha also writes, though the distinction is informative, it should not be taken at face value. There is a minimum requirement of the rule of law in regard to precedent, and I have called it the persuasive mode of precedential reasoning. Sometimes, however, courts will have to depart from past decisions, and this is particularly true with respect to those decisions that are notoriously suboptimalie are notoriously unjust, arbitrary or otherwise unsound. These reasons might not outweigh all competing values, as some scholars have rightly noted,44 but, all else being equal, they do recommend a commitment to the rule of law. The descriptive objection would argue that many courts follow precedents independently of their correctness.56 The normative objection, by contrast, would insist that, if precedent-following is to make a contribution to the rule of law, it should not depend on a later courts sympathy with the precedent.57. There might be situations where indeed it does, but I will have to postpone that analysis for another time. Precedent - Definition, Examples, Cases, Processes Without this commitment, it would be wrong to miss your daughters birthday. Suppose two years ago your daughter Claudia turned 15 and you allowed her to drink wine for the first time. THE SOURCES OF THE LAW. Or is such an obligation, as Grant Lamond claims, to treat the precedent as correctly decided on its facts?82 The fact that this debate is still ongoing makes it difficult to provide a clear-cut answer.83 My own view, which I hope to provide in detail soon, is that the obligation of a later court is to respect the decision of the earlier court to treat certain established facts as material, to give them a particular legal significance and to decide on the balance of reasons.84 This view would lean towards that of Lamond and later developed by John Horty.85 It can be summarised as follows: the later court must render a decision that is consistent with the authoritative treatment that the earlier court gave to the facts or factors of the precedent, as these were reported. Subsumption can be a straightforward or complex process, depending on whether it is clear or disputed that the facts of the case fall within the norms scope. This is because, all else being equal, it is contrary to the rule of law to depart from relevant precedent without explaining why. This tendency has led some scholars to consider where the civil law and the common law intersect; see Cadoppi (ibid.) But, secondly, if a relevantly similar dispute arises between other parties in the future, the later courtin the civil lawmay be prevented from reaching a legally justified decision solely by following precedent. ADVANTAGES OF LEGISLATION AS A SOURCE OF LAW 4. Stare decisis is a legal principle stating that prior court decisions (e.g., holdings, conclusions, rulings) must be recognized as precedent case law. If there are two correct ways of deciding the case, but the fact that one of them is supported by precedent does not count in the balance, then ceteris paribus parties have a 50% chance of anticipating the courts decision rightly. Consider stability and reliability. In relation to the persuasive mode, there is no denying that if the dispute at hand and the precedent are legally the same, then both can be adjudicated alike. I have posed two evaluative questions, but much more could be said. Secondly, the principles of judicial transparency and good government strongly militate in favour of courts adjudicating under the persuasive mode to explain why the reason to follow precedent has been outweighed. Therefore, depending on a legal systems commitment to the rule of law, we can identify two modes of precedential reasoning. Sources of Law (Unwritten Law) | PDF | Precedent | Sharia If a case is deemed a precedent case, then lower courts are compelled to rule in the same way as Now, we should bear in mind two things.
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