precedent

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Related to Judicial precedent: common law, Ratio decidendi, Statutory interpretation

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 ?
(156.) Of course, if the theory of this Article is correct, the fact that a statute abrogating stare decisis might be deemed inconsistent with prior judicial precedent interpreting Article III would not be a persuasive argument against the constitutional validity of the statute.
(233) Conventionalism seeks to effectuate "the consensus view about the meaning" of constitutional provisions "in the legal community of today." (234) Part of respecting that consensus view is deferring to judicial precedent. (235) Among the asserted benefits of conventionalism is the constraint of judges: "conventionalism basically shuts off the courts as an avenue for social change." (236) Along with constraint comes enhanced stability through a decreased incidence of disruptive transition.
The exception is a theory of constitutional interpretation that purports to regard judicial precedents as themselves constitutive of constitutional meaning.
Using stare decisis in these situations would elevate a nonsupreme rule of decision (judicial precedent) over the supreme law of the land (a constitutional federal statute), violating the hierarchy established in Article VI's Supremacy Clause.
Accepting that judicial precedent can trump original meaning puts judges above the Constitution they are supposed to be following, not making.
In the case of attorneys' fees paid under a common fund theory of recovery, generally, the attorneys' fees are awarded directly to the class counsel, based on judicial precedent. (23) The Service has held that this does not result in gross income to the class members, assuming the class members did not individually agree to compensate the attorneys.
Flores,(1) the Supreme Court repeats the familiar proposition that it is the province and duty of the judiciary "to say what the law is."(2) But the Court also says that Congress has "the duty to make its own informed judgment" on the meaning of the Constitution.(3) The Religious Freedom Restoration Act (RFRA or the "Act")(4) thus exceeded Congress's power not because constitutional interpretation is outside the legislative function, but because the Act was based on an interpretation of the religion clauses that contradicted an existing judicial precedent.(5) Congress, in short, must defer to the Court's existing interpretations.
'G25 feels that the ruling of the High Court Judge is retrogressive, against high judicial precedent and contrary to the Federal Constitution.
He has argued that a judicial precedent for constituting a bench comprising the full court is already available in Chief Justice Iftikhar Chaudhry versus the President of Pakistan.
During the 15 years since the first edition, they say, changes in both statutory law and judicial precedent have altered the legal techniques available, but the biggest changes are due to the rise of arbitration, regulatory and criminal-law actions by governments, and even compensation funds sponsored by potential defendants.