Precedent
From Wikipedia, the free encyclopedia.
Precedent, sometimes authority, is the legal principle or rule created by a court which guides judges in subsequent cases with similar issues or facts.
Reliance of precedent is sometimes attacked as the logical fallacy of argument from authority. Argument from authority is a common fallacy in discussion. It consists in saying that to act correctly in circumstances X would be inadvisable, in case others consider that this would set a precedent for acting in circumstances Y, where (it is argued) X and Y are superficially similar but (on close examination) are radically different. See Microcosmographia Academica for the original statement.
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Mandatory
Mandatory precedent, or binding authority, is a precedent under the doctrine of stare decisis that a lower court must consider when deciding a case. Mandatory precedent is usually created by appellate courts. Mandatory precedent is binding on lower courts. Lower court decisions, by definition, cannot be binding on higher courts, although appellate courts often adopt the legal reasoning of lower courts.
In a case of first impression there is no mandatory precedent.
In extraordinary circumstances, subsequent appellate courts may overturn or overrule mandatory precendent. However, courts go to great lengths to distinguish the current case--thereby limiting the scope of the precedent--rather than overturning the previous decision.
Persuasive
Persuasive precedent or advisory precedent are cases which a court may use but is not required to follow in deciding its cases. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues.
An appellate court's adoption of persuasive precedent can make such precedent binding.
Creation of precedent
Precedent in law can be created by custom and case law.
Custom
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.
Case law
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.
Landmark case
When a precedent becomes of significant importance to an issue, or represents new or changed law in a particular issue, that precedent is often referred to as a Landmark case or landmark decision.
