Binding precedent
Encyclopedia
In law
, a binding precedent (also mandatory precedent or binding authority) is a precedent
which must be followed by all lower court
s under common law
legal systems
. In English law
it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom
, which took over the judicial functions of the House of Lords
in 2009. In Civil law
and pluralist
systems precedent is not binding but case law
is taken into account by the courts.
Binding precedent relies on the legal principle of stare decisis
. 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 three 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 (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'.
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:
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, a binding precedent (also mandatory precedent or binding authority) is a precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
which must be followed by all lower court
Lower court
A lower court is a court from which an appeal may be taken. In relation to an appeal from one court to another, the lower court is the court whose decision is being reviewed, which may be the original trial court or an appellate court lower in rank than the superior court which is hearing the...
s under common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems
Legal systems of the world
The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
. In English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
, which took over the judicial functions of the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
in 2009. In Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
and pluralist
Legal pluralism
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems...
systems precedent is not binding but case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
is taken into account by the courts.
Binding precedent relies on the legal principle of stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
. 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 three 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
Legal certainty
Legal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. Legal certainty is internationally recognised as a central requirement for the rule of law....
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 (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'.
Binding precedent in English law
Judges are bound by the law of binding precedents in England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
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:
- The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
- Whether the facts of the current case come within in the scope the principle of law in previous decisions.