Template:Precedent
Precedent
A precedent is a principle or rule established in a previous legal case relevant to a court, jury, or other tribunal when deciding subsequent cases with similar issues.
According to Cornel Law University the term precedent is:
"Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. Precedent is incorporated into the doctrine of stare decisis and requires courts to apply the law in the same manner to cases with the same facts."
Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues.
Precedence means “priority of importance,” as in “Their request takes precedence because we received it first.” Precedent means “an earlier occurrence” or “something done or said that may serve as an example.” [1]
Precedent was not a product of the legislature nor the king nor his codification of law but was drawn from the conscience of society. While statutes as product of the legislature may apply in the decision of the court in some jurisdictions the ultimate protection for the "weightier matters of the law, judgment, mercy, and faith:" is the God given conscience of man through Jury nullification.
"COMMON LAW. That which derives its force and authority from the universal consent and immemorial practice of the people. See Law, common."[2]
Common Law, also known some times as case law, relies on detailed records of similar situations or precedent, and statutes, if available, because there is no official legal code that can apply to a case at hand.
Generally, there are two types of legal precedents: Binding precedent – Precedent that a court must abide by in its adjudication of a case. Persuasive precedent – Precedent that a court may, but is not required to, rely on in deciding a case. At the original Common Law there was only the latter for their was no king before Cain and Nimrod. There is also terms like Custom and Case law used to describe known precedent.
Bouvier Law Dictionary
PRECEDENTS. the decision of courts of justice; when exactly in point with a case before the court, they are generally held to have a binding authority, as well to keep the scale of justice even and steady, as because the law in that case has been solemnly declared and determined. 9 M. R. 355.
2. To render precedents valid, they must be founded in reason and justice; Hob. 270; must have been made upon argument, and be the solemn decision of the court; 4 Co. 94; and in order to give them binding effect, there must be a current of decisions. Cro. Car. 528; Cro. Jac. 386; 8 Co. 163.
3. According to Lord Talbot, it is "much better to stick to the known general rules, than to follow any one particular precedent, which may be founded on reason, unknown to us." Cas. Temp. Talb. 26. Blackstone, 1 Com. 70, says, that a former decision is in general to be followed, unless "manifestly absurd or unjust,", and, in the latter case, ii is declared, when overruled, not that the former sentence was bad law, but that it was not law.
4. Precedents can only be useful when they show that the case has been decided upon a certain principle, and ought not to be binding when contrary to such principle. If a precedent is to be followed because it is a precedent, even when decided against an established rule of law, there can be no possible correction of abuses, because the fact of, their existence renders them above the law. It is always safe to rely upon principles. See Principle; Rewon. de 16 Vin. Ab. 499; Wesk. on Inst. h. t.: 2 Swanst. 163; 2 Jac. & W. 31; 3 Ves. 527; 2 Atk. 559; 2 P. Wms. 258; 2 Bro. C. C. 86; 1 Ves. jr. 11; and 2 Evans Poth. 377, where the author argues against the policy of making precedents binding when contrary to reason. See also 1 Kent, Comm.475-77; Liv.Syst. 104-5; Gresl. Ev. 300; 16 Johns. R. 402; 20 Johns. R. 722; Cro. Jac. 527; 33 H. VII. 41; Jones, Bailment, 46; and the articles Reason and Stare decisis.