precedent as a source of law pdf

I do not think there is a unique answer here; it depends on the history of the legal system, its legal tradition and practices, and the values people in that system hold dear. . (Pdf) the "Source of Law" Category Supreme Court guts affirmative action in college admissions See eg Lamond (n 7) 15, arguing that Any satisfactory view of precedent must see distinguishing as an integral part of it rather than as an add-on or quirk of the common law. Nothing in the main argument turns on this point. (Pdf) Precedent As a Binding Source of Law Under Rwandan Legal System For example, if the issue under consideration is so sensitive, reaching a different outcome may affect reliability in ways that are more prejudicial to the legal system than deciding the case in a substantively correct manner. As one anonymous referee has correctly pointed out, many civil law countries have shown a tendency to depart from the classic civilian understanding of precedent to one where courts, at least in certain matters, are required to follow precedent. 1.6 Sources of Law Learning Objectives Identify the three sources of law. Now, if the situation of Peter is relevantly similar to that of Claudia,69 do you have a reason to allow Peter to drink wine? Another factor giving more or less weight to the reason in favour of following precedent is whether the later court thinks that the precedent was rightly or wrongly decided. This, in turn, may create a contingent pattern of deciding precedent-governed disputes in conformity with the precedent. Raz, The Authority of Law (n 12) has argued that, at least in England, the rule of recognition gives legal validity to authoritative precedents. See eg Tamanaha (n 21) 1024 and 10911; Bingham (n 23) ch 7; J Waldron, The Rule of Law, The Stanford Encyclopedia of Philosophy (Summer edn, 2020) accessed 20 June 2020. It seems, therefore, that the authoritative mode places more value on advancing the rule of law than on deciding cases correctly, at least where this correctness entails contravening established precedent.102 By contrast, the weakness the persuasive mode showed in the last subsection can now be seen as virtues in relation to the value of deciding cases correctly. If courts can lawfully adjudicate disputes without paying attention, in a normatively significant way, to relevant precedent, then it is doubtful whether something in laws nature requires the practice of following precedent. 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. In practice, this means that lower courts are bound to apply the legal values set down by higher courts in earlier cases. 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. One challenge that arises immediately is the following: how can we justify later courts that knowingly replicate incorrectly decided precedents? But in order for the law to allow this, the law cannot suffer changes too frequently. The proviso of time is important because it would not seem plausible to think that a legal system has achieved stability in relation to a specific matter if the content of the law on that matter changes too frequently. According to Duxbury (n 2) 128, only rarely since 1966 has the House of Lords used the power that it created for itself. What is Statutory Law . Search for other works by this author on: The Author(s) 2021. Possibly in a legal system that attaches significant value to having democratic legislation as the main source of law, the reasons for leaning towards the persuasive mode are more demanding. Yet the question still remains open as to which of the two modes that are compatible with the rule of law should be preferred. Judicial precedents refer to the decisions given by courts in different cases. The reason in favour of following precedent is only a minimum requirement of the rule of law. The upshot is that such a precedent typically ceases to be part of the law.89, The grounds on which a court may overrule vary across jurisdictionsand also within one legal system. This article is written by Tushitta Murali, from Tamil Nadu National Law University. Similarly, there may be legal systems that prohibit courts from relying on precedents, at least for the purpose of using them as a legal basis for reaching justified decisions. This proviso is important. This dilemma, to be sure, is merely apparent. Governs behavior of individuals in society. But Perrys objection would misfire if there are some common law courts in the world that treat precedents as giving rise to exclusionary reasons. 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. See Aristotle, Nicomachean Ethics in J Barnes (ed), The Complete Works of Aristotle: The Revised Oxford Translation vol II (Princeton UP 1984) 1796 (1137b1718). Tamanaha (n 21) 102; similarly, ibid 111. As a positive second-order reason, therefore, a commitment is a premise that can be added to the normative background to justify what would otherwise be unjustified. I will start from the rule of law and then articulate two modes of precedential reasoning that are consistent with this ideal. In the Indian context, the primary legal sources of Law can be classified into three divisions: 1.Enacted Law, having its source in legislation 2.Case Law, having its source in precedent 3.Customary Law, having its source in customs, and. Finally, the later court could adjudicate under the persuasive mode, but there might be responsibilities for doing so, particularly if that court has a legal duty to adjudicate under the authoritative mode. By treating certain established facts as material, I mean making them relevant for deciding the present case. On the idea of a second-order reason, see text to nn 64, 65 and 66 below. Notice that the claim here is a modest one. 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. This possibility provides the conceptual basis for thinking that a particular model of precedent may exist. 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. Judicial precedent is therefore that source of law in which the past judgments create a set of rules and laws for judges to look back at and refer to for any guidance in their cases. To illustrate the problem, it will be useful to distinguish between two versions of following precedent: weak and robust.60 According to the weak version, a later court has a reason to follow precedent only if the precedent was correctly decided. Here, a precedent should be taken to mean a past decision or past case that is relevantly similar to the case at hand. Law.com Network of Sites . However, history shows that the Continental legal systems afforded great importance to the judges' decisions, earlier than when English law did. The existence of this reason increases the degree of reliability given to parties vis--vis the null model. In this situation, the precedent makes a normative difference, since the later court has to meet a justificatory burden for failing to conform to it. The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Hong Kong, New Zealand, Pakistan, Singapore, Malaysia and South Africa. Now, one should be careful not to conflate precedent-following with treating like cases alike or to ground the former in the latter. But if a relation of adjudicatory hierarchy exists, it is not clear whether following precedent amounts to obeying a military command. In particular, it is vital that the reason to follow precedent does not depend on whether a later court agrees with the precedents correctness. Discussing Dworkins views on precedent, see also S Perry, Judicial Obligation, Precedent and the Common Law (1987) 7 OJLS 215, 2236. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. Precedent form the primary source of law these days, they tend to strengthen the laws and judicial system of the country and help us to improve the formation of laws of the country and make them suitable according to the situations. international law but they are not themselves creative of law and there is a danger in taking an isolated passage from a book or article and assuming without more that it accurately reflects the content of international law. The point is that, to the extent that there is considerable agreement in the literature in identifying stability, reliability and equality as rule-of-law values, we can call these values collectivelyand for current purposes onlythe rule of law. Diagram and explain the components of a case brief. Likewise, when it comes to precedent-following, commitments can do a similar work. The point is that, often, the relative force of judicial decisions entails that precedents are not generally given legal status. There is one caveat to bear in mind. 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. See eg P Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework (1997) Public Law 467; Tamanaha (n 21) chs 79; Waldron, The Rule of Law and the Importance of Procedure (n 23) 45; Waldron, The Rule of Law (n 24); A Zanghellini, The Foundations of the Rule of Law (2016) 28 Yale JL & Human 213, 214. cf Wise (n 7) 10578. Therefore the word Legislation means lawmaking. PDF KM 754e-20140129084233 - Livingston Public Schools See eg Lyons (n 2); F Schauer, On Treating Unlike Cases Alike (2018) 33 Constitutional Commentary 437. PDF Custom as a Source of Law - Cambridge University Press & Assessment In the modern legal system, the term precedent refers to a rule, or principle of law, that has been established by a previous ruling by a court of higher authority, such as an appeals court, or a supreme court. 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. To illustrate: by virtue of the 1966 Practice Statement,90 the House of Lords (today the UK Supreme Court) is authorised to overrule its own precedents when it appears right do so. Define judicial review. History, Politics, Theory (CUP 2004) 334; J Waldron, The Concept and the Rule of Law (2008) 43 Ga L Rev 1, 6; Waldron (n 2) 34. b. In this final section, I want to analyse how both modes of precedential reasoning deal with two evaluative questions. The Secret Service is expected to conclude its investigation into a bag of cocaine found in the West Wing early next week, a federal law enforcement official told CNN - regardless of whether a . 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. 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 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. 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. I have posed two evaluative questions, but much more could be said. See eg Raz (n 12) 224; B Tamanaha, On the Rule of Law. Based on the example of Poland, Peczenik takes further support to be cases where eg a precedent adds weight to other legally relevant arguments for the decision handed down; ibid 462. laws.4 The doctrine of precedent infers that judicial decisions have the force of law in addition to. Precedents as a source of law - Lawctopus Read the Supreme Court decision reversing decades of precedent on affirmative action. The practice, therefore, aims to prevent the passage of time from altering this kind of treatment. For instance, Austin considers the sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Stevens, Case-to-Case Arguments (n 58) 4367. Precedents are often given legal status, but they are not created by a democratic process. Sources of Law | PDF | Precedent | Obiter Dictum Reading #1 gives an overview of the . As the term 'law' has several meanings, legal experts approach the sources of law from various angles. Note: Prepare a flow chart Sources of Law I:Legislation More importantly, sometimes this commitment can be the sole reason for why one perseveres on the chosen pathsay, because ones initial reasons no longer exist, such as when ones preferences, or the circumstances of life, have changed. It reminds us, first, that the values brought by judicial conformity to precedent, soon to be studied, should not be taken for granted. the practices which gives effect to that rule. In a hard case, the null model entails a probabilistic lottery. 21-476, it agreed to decide only one question: "whether applying a public-accommodation law to compel an artist . Justice and courts have always had a complex relationship. As such, this reason can be outweighed by a more compelling reason. That obligation can take the form, inter alia, of having to apply the rule laid down by the ratio,86 or having to decide in a way that is consistent with the background case, as Horty puts it.87 But, to be sure, in both cases the later court has an obligation to decide the precedent-governed dispute by following precedent. v. Elenis, No. This is why a ceteris paribus clause is needed: all else being equal, following precedent is a distinctive means towards a valuable end. A sensible detachment from practice is beneficial because it allows us to identify modes of precedential reasoning that can exist independently of a particular legal tradition. To say that courts may follow wrongly decided precedents in order to foster the rule of law is not to say that they must. The possibility of the null model is valuable for two reasons. This number decreases when the amount of possible justified scenarios increases. Now, because some may think that stability has value in its own right, I have decided to keep stability and reliability as separate values. That decision was, in other words, a mistake. The argument needs to be qualified. Among them is the epistemic guidance that later courts may receive from knowing how earlier courts have dealt with statutes that are vague or have an unclear semantic meaning. Judicial Precedent as a Source of Law - Legal PaathShala See eg C Perelman, The Idea of Justice and the Problem of Argument (J Petrie tr, Routledge & Kegan Paul 1963) 38; H Kelsen, Pure Theory of Law (M Knight tr, 2nd edn, University of California Pres 1967) 1412; P Westen, The Empty Idea of Equality (1982) 95 Harv L Rev 537, 551; J Raz, The Morality of Freedom (Clarendon Press 1986) 2201. 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. Ascertain one purpose of statutory law. This debate between common law scholars has one consequence for our analysis. The rulings of the English and American Courts are persuasive precedents only. But once these central features are picked, there is room for a sensible detachment from practicesee n 76 below. The point, rather, is that this modest version is sufficient to ground precedential constraint, while avoiding the profound disagreement entailed by many of the substantive versions. In the next section, I will lay out the structure for articulating two modes of precedential reasoning that, unlike the null model, advance the rule of law. Violation means a crime has been committed Found in Penal Code, Health & Safety Code, Traffic Code, etc Procedural Law: Lays out the step by step procedure to be This process is generally known as subsumption, and though the margin for discretion might be reduced, adjudication will often require sensible judgment. If they were not, then the lower court would be required to replicate a substantively incorrect decision.101. 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. This commitment may well constitute part of the duty that judges assume when they are sworn in. This type of case should be distinguished from those in which the later court offers reasons for not following relevant precedent. Judicial precedent is a source of Law - iPleaders Thus, unless very exceptional circumstances arise, you have a commitment to show them that you treat them equally by following your past decisions. Other Sources . Sometimes, however, this fact does not exist. In section 2, I argue that the practice of following precedent should not be taken for granted. By Pennsylvania Law Weekly | July 11, 2023 at 12:05 AM. Law: A body of rules of action or conduct prescribed by controlling authority, and having binding legal force. I unfortunately cannot address this vast literature here. It seems that, if a legal system wants to balance tailored justice (to the parties) with stability and reliability, that threshold will unavoidably be affected by what Andrei Marmor called moral vagueness.52 The threshold, in other words, will contain an evaluative concept whose application requires a value-laden judgment by the later court. That stability is instrumentally valuable to reliability is a view present in T Benditt, The Rule of Precedent in L Goldstein (ed), Precedents in Law (Clarendon Press 1987) 91; Duxbury (n 2) 1601. Precedent as a source of law 4. Both values demand that the content of the law remain stable over time, so that people can rely on it to adopt decisions. If a later court wants to distinguish, as we saw above, then it must provide reasons showing that the case at hand presents a novel fact that is relevant for the decision. 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. It is here where judges come into play. With respect to terminology, I will speak of the earlier court to refer to the court that decided a case in the past that is relevantly similar to the one being decided by the later court. 7. In relation to the civil law, see Merryman and Prez-Perdomo (n 17) 47; Peczenik (n 19) 461 and 4656. PDF LL.B. (Hons.) (Second Year) IIIrd Semester Paper - I Subject
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precedent as a source of law pdf 2023