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Concept

Precedent

Overview

Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of stare decisis ("to stand by things decided"), where past judicial decisions serve as case law to guide future rulings, thus promoting consistency and predictability.

Precedent is a defining feature that sets common law systems apart from civil law systems. In common law, precedent can either be something courts must follow (binding) or something they can consider but do not have to follow (persuasive). Civil law systems, in contrast, are characterized by comprehensive codes and detailed statutes, with little emphasis on precedent (see jurisprudence constante), and where judges primarily focus on fact-finding and applying the codified law.

Courts in common law systems rely heavily on case law, which refers to the collection of precedents and legal principles established by previous judicial decisions on specific issues or topics. The development of case law depends on the systematic publication and indexing of these decisions in law reports, making them accessible to lawyers, courts, and the general public.

Generally speaking, a legal precedent may be:

applied (if precedent is binding) / adopted (if precedent is persuasive), if the principles underpinning the previous decision are accordingly used to evaluate the issues of the subsequent case;

distinguished, if the principles underpinning the previous decision are found specific to, or premised upon, certain factual scenarios, and not applied to the subsequent case because of the absence or material difference in the latter's facts;

modified, if the same court on determination of the same case on order from a higher court modified one or more parts of the previous decision; or

overruled, if the same or higher courts on appeal or determination of subsequent cases found the principles underpinning the previous decision erroneous in law or overtaken by new legislation or developments.

Overview adapted from Wikipedia (CC BY-SA 4.0; see the article history for authors).

Possible passages

Found by search and not yet checked by a person; they may only mention the idea in passing.

  1. If all these circumstances, which characterize the present case, have taken place in theirs also, then follow the precedent. Be assured, the cases will be so rare as to produce no embarrassment, as never to settle into an injurious habit.

    Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Volume 4

    Names Precedent several times; opens on Precedent.

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  2. Therefore all the Sentences of precedent Judges that have ever been, cannot all together make a Law contrary to naturall Equity: Nor any Examples of former Judges, can warrant an unreasonable Sentence, or discharge the present Judge of the trouble of studying what is Equity (in the case he is to Judge,) from the principles of his own naturall reason. For example sake, ’Tis against the Law of Nature, To Punish The…

    Thomas Hobbes, Leviathan

    Names Precedent twice; opens on Precedent.

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  3. In doubtful cases such courts, from their anxiety to avoid blame, would naturally endeavour to shelter themselves under the example or precedent of the judges who had sat before them, either in the same or in some other court. This attention to practice and precedent, necessarily formed the Roman law into that regular and orderly system in which it has been delivered down to us; and the like attention has had the…

    Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations

    Names Precedent twice.

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Related ideas

Opposing perspectives

Place in the tradition

Part of Jurisprudence.

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