|
The Common Law and Judicial Precedent
|
| |
The common law evolved from unwritten English law, which was based on tradition and custom. English common law is the basis for federal law and the law of all states, except Louisiana (where the law is based on the Napoleonic Code or the French Civil Code). The most important characteristic of the common law is that it is judge-made law rather the law derived from constitutions, statutes, regulations, or ordinances, which are legislative enactments. Under the common law system, current cases are decided using the precedents established by past judicial decisions.
Doctrine of Stare Decisis
English common law is characterized by the doctrine of "stare decisis" (a Latin phrase meaning stand by what has been decided). The doctrine of stare decisis is the legal principle underlying judicial precedent. Under stare decisis, a judicial decision made in one case is binding on judges in later cases with similar facts. Stare decisis assures fairness, stability, and continuity in the rule of law. However, the doctrine of stare decisis is not static because the common law can take into account changing social values and conditions and can evolve to meet society's changing needs.
Departing from Past Precedent
A court should not depart from past precedent arbitrarily and without strong justification. Courts may deviate from a precedent if there is an obvious error in the earlier decision or if the principle of law established by the precedent is unreasonable. Other reasons that might justify departure from precedent include changes in the law that weaken the reasoning behind the prior decision or new facts that make it necessary to modify the prior decision.
A court can distinguish its case from established precedent if the facts in the current case are different than those in the case that set the precedent. But, in general, the court should follow the established precedent unless there is a compelling reason for change. It is within a court's discretion to overrule its own past decisions or precedents, and higher courts can overrule decisions made by lower courts.
Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Hsu, Robert C. website is powered by LexisNexis® Martindale-Hubbell®. || Sitemap |
|
