Binding precedent

Binding precedent

In law, 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". A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law.Existing binding precedents from past cases are applied in principle to new situations by analogy.

There are two elements needed for a precedent to work. Firstly, 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, and on the other side the avoidance of undue restriction on the proper development of the law'

Judges are bound by the law of binding precedents in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges' decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:1) The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.2) Whether the facts of the current case come within in the scope the principle of law in previous decisions.

There are advantages and disadvantages of binding precedent.The advantages are - Certain, Consistent, Precise, Flexible and Time-saving.The disadvantages are - 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).

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  • Precedent — In common law legal systems, 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. DescriptionThe precedent on an issue is …   Wikipedia

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  • binding authority — Sources of law that must be taken into account by a judge in deciding a case; for example, statutes or decisions by a higher court of the same state on point. See precedent …   Black's law dictionary

  • binding authority — Sources of law that must be taken into account by a judge in deciding a case; for example, statutes or decisions by a higher court of the same state on point. See precedent …   Black's law dictionary

  • Persuasive precedent — (also persuasive authority) is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge… …   Wikipedia

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