precedent


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precedent

Law a judicial decision that serves as an authority for deciding a later case

Precedent

 

in law, a decision delivered by a court in a specific case, the opinion for which becomes a rule that is binding on all courts of the same or lower instance in deciding analogous cases. Soviet law does not recognize precedent and does not permit the decision of criminal cases by analogy, holding that the judicial decision should be based on statutory law alone.

In some countries, including Great Britain, most of the states in the United States, Canada, and Australia, legal precedent is recognized as a source of law and lies at the foundation of the entire legal system. In accordance with the prevailing doctrine in these countries, the judge who creates a legal precedent does not create a legal norm but only formulates that which follows from the common principles of law inherent in human nature. In reality the judge may always reject the application of precedent, citing some insignificant features of the particular case in order to introduce an entirely new rule. The judge also has the freedom to interpret precedent and to select from an enormous number of precedents; in other words, there is an enormous potential for judicial discretion and arbitrary legal actions. In legal writing and in practice, systems of law based on precedent are often called systems of judge-made law.

In a number of bourgeois countries, including France, the Federal Republic of Germany, and Belgium, precedent is important for deciding questions of the application of law, filling gaps in the law, and recognizing custom and commercial practices. On the basis of precedent, existing legislation is supplemented, and statutory law is interpreted.

References in periodicals archive ?
Originalism thus places a premium on precedent, and to lhe extent that originalists reject the possibility of deviating from historically-settled meaning, one could say that their view of precedent is particularly strong, not weak as their critics often contend.
Moreover, Justice Scalia framed some of his most vociferous disagreements with Supreme Court precedent as a defense of a competing form of precedent: the history and traditions of the American people.
Part II also contains a discussion of other relevant empirical work, including our 2013 holding-dicta study and studies of federal courts of appeals' adherence to Supreme Court precedent.
As Benjamin Cardozo wrote, the rule of adherence to precedent should be "relaxed" when a decision "has been found to be inconsistent with the sense of justice or with the social welfare.
The relationship between judges' ideology and their use of precedent has been relatively unexplored by scholars in law and political science.
Specifically, the dataset contains every cited Supreme Court precedent for the years 1953 to 2007.
These questions aim to define the scope of precedent.
17) The result is the prevalence of an inclusive paradigm of precedent in which binding effect attaches to a vast array of judicial propositions.
This concept is consistent with the assumption that the social construction of legitimacy is both relative and varies over time) Thus, the precedent strategies established by peer firms' alliance strategies and the prestige of the IPO's affiliated underwriter play critical roles in informing ventures on how to signal quality through social capital, and in turn how external evaluators should assess this quality signal.
This logic supports a "more is better" proposition for social capital signaled through alliances, where investors interpret this signal as an isolated firm-specific asset (Dyer & Singh, 1998), in more absolute terms, and not according to a prior precedent.
Worse, correcting a mistake like this in copy-paste precedent is at once less and more difficult than correcting one that is published.
This is the more significant, procedural sense in which the copy-paste precedent discussed in this essay is mistaken: It makes law the wrong way.