In law, a precedent or authority is a legal case establishing a principle or rule which a court may need to adopt when deciding subsequent cases with similar issues or facts. The term may also refer to the collective body of case law which a court should consider when interpreting the law. When a precedent establishes an important legal principal, or represents new or changed law on a particular issue, that precedent is often known as a landmark decision.
Mandatory and persuasive precedent
A precedent which must be applied or followed is known as mandatory precedent or binding authority. Under the doctrine of stare decisis, a lower court must have regard to mandatory precedent when deciding a case. Mandatory precedent is usually created by superior courts and is binding on lower courts. By definition the decisions of lower courts are not binding on superior courts, although superior courts may often adopt the legal reasoning of lower courts.
In extraordinary circumstances a superior 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. In a case of first impression there is no mandatory precedent for the court to consider.
A precedent which is not mandatory but which is useful or relevant is known as persuasive precedent or advisory precedent. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a superior court.
Custom and case law
Long-held custom which has traditionally been recognized by courts and judges is the first kind of precedent. Custom can be so deeply entrenched in the society at large that it gains the force of law. There need never have been a specific case decided on the same or similar issues in order for a court to take notice of customary or traditional precedent in its deliberations.
The other type of precedent is case law. This type of precedent is granted more or less weight in the deliberations of a court according to a number of factors. Most important is 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? Second, when and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law. Least weight would be given to precedent which stems from dissimilar circumstances, older cases which have since been contradicted, or cases in jurisdictions which have dissimilar law.
Precedents viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law. For instance, if women have been enjoying greater and greater equality under the law, then the next legal decision on that subject may serve to bring still greater equality.
Criticism of precedent
Reliance on precedent is sometimes criticized as the logical fallacy of an appeal to authority or the argument from precedent. [citation needed]
See also
