Talk:Precedent

History of Precedent

I would appreciate a historical analysis of precedent from the time of it's inception onward. I assume precedent comes from Roman times, but I am woefully uninformed on this subject. What is the precedent of precedent? —Preceding unsigned comment added by 97.75.172.122 (talk) 22:51, 31 March 2011 (UTC)

Common Law is the will of mankind issuing from the life of the people, is an engraving on the United States Department of Justice building.

Common law is not a legal system. It is a judicial system. Cases involving "a suit at the common law" inherently involve judicial determination and must come before Article III courts, that makes all courts common law courts. [c.f. 59 U.S. 272 (1855) , United States Reports ].

A court of record only moves under the common law. Courts of record proceed without the use of statutes and are judicial courts and their final judgments cannot be appealed. (c.f. CORPUS JURIS SECUNDUM vol 25 section 344, Black's Law Dictionary, 4th Ed., p 426. Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Metc., Mass., 171, per Shaw, C. J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689].

The judgment of a court of record whose jurisdiction is final is as conclusive on all the world as the judgment of this Court would be. It is as conclusive on this Court as on other courts. It puts an end to inquiry concerning the fact by deciding it.” [Ex Parte Watkins, 3 Pet. 202-203. Chief Justice Marshall of the Supreme Court of the United States (1801–1835)]

Courts which proceed with the use of statutes ( legal system) are legislative (inferior) courts [c.f. Article III Section 1. "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish..." , Article I section 8 "The Congress shall have power...To constitute tribunals inferior to the Supreme Court..."]

All federal courts are courts of record [c.f CORPUS JURIS SECUNDUM vol 25 section 344] which at common law not only have the authority to apply or interpret the law, but also the authority to create law if it does not already exist by act of legislature. This is called case law precedent. — Preceding unsigned comment added by 108.70.108.224 (talk) 19:09, 24 May 2015 (UTC)

To the degree the six prior paragraphs are not pure gibberish, they're incorrect. See court of record and Talk:court of record#Please, no cranks for discussion of the errors. The one exception is these two sentences, "[Courts] at common law not only have the authority to apply or interpret the law, but also the authority to create law if it does not already exist by act of legislature. This is called case law precedent." Even a stopped clock is right twice a day. 73.38.59.62 (talk) 00:59, 14 November 2015 (UTC)

References

This article needs fixing

I've redirected Binding authority and Persuasive authority to this article, but I'm thinking twice about it. This is not a particularly enlightening piece. I'm contemplating rewriting... Mmmbeer 22:27, 19 July 2005 (UTC)

Categories

Why is this included in the category "Logical fallacies"? --Eastlaw 05:56, 22 May 2006 (UTC)

Probably because an argument from precedent is a logical fallacy. mmmbeer^{T / C / ?} 10:38, 23 May 2006 (UTC)

Citing judicial precedent is not a fallacious "appeal to authority"

Dear fellow editors: I agree, this article needs work.

I argue that the reference to reliance on "precedent" as a logical fallacy (appeal to authority) is misplaced in the context of legal precedent. In English common law systems (e.g., in England, USA, Canada, etc.), the rule of precedent (specifically, judicial precedent) basically says that if a prior court decision is on "all fours" (or very close to "all fours") with the issues and facts presented in a current case, the court in the current case should follow the holding of the prior case (assuming certain other legal points not relevant to this discussion). This is a rule of law in English common law systems, not a method of determining the "truth" or "falsity" of something. It's a part of the English system of legal rules itself. The key point is that we're not following the holding of the prior case because it's "correct" or "true." We're simply applying a rule of the legal system.

Let's compare this to the fallacy of "improper appeal to authority." If we want to determine what a particular constitutional provision, statute, reg, or court case says, we read the actual text thereof. For example, suppose someone asks, "Hey, what's your authority or rationale for saying that all persons born or naturalized in the United States are citizens of the United States?" We respond by pulling out a copy of the U.S. Constitution and reading the Fourteenth Amendment -- which says just that. (I'm assuming that we have an actual verbatim copy of the text.) It's not a question of saying that we are making an improper, fallacious "appeal to authority" here. And it's not a question of saying that the statement is "true" merely because authority says it's true. If you want to know what the law is, you read the law.

In law, the actual text of the statute or, in the case of a court decision, the holding, etc., IS the law. When we cite a statute or court decision, we are not "appealing to authority" in the same sense that we are doing so when we say "the Earth revolves around the Sun because Copernicus says so." Whether Copernicus is right or wrong about the facts, whether Copernicus says so does not DETERMINE the ontological correctness of the statement that the Earth revolves around the Sun.

However, in the case of law, if we contend that the statute says such and such a thing, a direct, exact quotation from the statute itself IS CONCLUSIVE (again, assuming arguendo that our copy of the statute is an actual, verbatim print of the statute, etc.). Similarly, citing legal precedent (or, more specifically, judicial precedent) is "more correct" in a fundamental sense in determining "what the law is" than appealing to Copernicus for a "determination" of whether the Earth goes around the Sun.

Now, in medieval times they might have had a "rule of law" that whatever the Church said about how the universe operated was "the law" (i.e., secular law). But in medieval times, what the Church (the Authority) said about the universe -- whether correct or not -- still did not change or affect in an actual, ontological sense, the laws of physics or the nature of the universe. In this way, appealing to the Church as the ultimate authority on determining whether the Earth revolved around the Sun (or vice versa) would have been fallacious, in a way that citing precedent in the English common law system is NOT fallacious.

Of course, problems such as (1) determining what the judicial precedent really is -- how broadly or narrowly to frame the holding of the prior case, and (2) whether the facts of the prior case really are close enough to our facts, and (3) whether the prior case has been overruled, reversed, limited, etc., are separate, complex issues.

The real confusion that results in incorrectly thinking that the use of legal precedent is somehow "fallacious" actually involves a fallacy of a different sort -- the fallacy of "whole word equivocation." In talking about legal precedent (whether judicial or administrative) we are using the term "precedent" in a technical legal sense. In talking about "precedent" in the context of a fallacious appeal to authority, I argue that we are using "precedent" in a slightly different way. We are improperly trying to "make equal" two different senses of the same word ("precedent") that are not really "equal."

I think you can reasonably argue back and forth about whether the English common law system -- including the rule of judicial precedent -- is a good or bad system, or whether the underlying policy considerations that resulted in the creation of the rule of precedent and the incorporation of that rule into the English system were good or bad policies. For example, maybe we should abolish the system of precedents because .... whatever. But those are separate concepts.

Any thoughts, anyone? Yours, Famspear 21:57, 23 May 2006 (UTC)

PS: I do not mean to imply that simply quoting from any passage of text of a court opinion establishes the holding of the case, the precedent for which that case stands. For fellow lawyers, my explanation assumes with respect to citations to precedent, that you have "correctly" distilled the holding of the cited case, etc. For the majority of readers -- who are not lawyers -- what this means is that court cases are a bit different from statutes and regulations. Most of what is written in the text of a court opinion is not necessarily the "precedent," the "rule" for which that case stands. I am simply saying that in the context of citing precedent (whatever that happens to be for a particular case), the citation to the precedent is not a "logical fallacy" -- it's the proper method of analysis in an English common law system. Yours, Famspear 22:11, 23 May 2006 (UTC)

It is now three and a half months later, and no one else has commented on this. I have therefore deleted the language from the article. Yours, Famspear 23:19, 7 September 2006 (UTC)

Famspear is correct. The law and religion are the two areas of human activity where something true because a specific person with authority to say so said so. When a majority of the Supreme Court says the law is such-and-so, well, that's the law. And the only reason it is the law is because a majority of the Supreme Court said so.

That's the defintion of a "common law" system.

Now things are different in civil law systems, but I don't understand that enough to opine.

Boundlessly (talk) 17:38, 23 December 2011 (UTC)

Merge from case law

I will shortly propose that the article case law be merged with this one because the terms have nearly identical meanings and their respective articles are almost completely redundant. Precedent refers either to the precedential effect of a single case or the aggregate of all cases with respect to a given legal question. Case law is the same thing but usually refers to all of a legal system's precedent in aggregate. Sure, case law has a nuance that focuses on the case itself whereas precedent refers to its effect. However, the difference is slight and doesn't really justify two different articles.

Alas, neither article is very good. This one is written in better English and is as a whole more accurate, but misses the point. The other one is full of awkward language and inaccuracies, and has no section headers. Neither has any citations. Combining the two can't make things any worse, and might encourage someone to actually clean things up. This is an important and worthy subject, and I think we can do better. Wikidemo 22:24, 13 August 2007 (UTC)

Text from "opinion"

I gutted the discussion of case law from the opinion article and made it refer here because it too is redundant. Here is some language I removed that might be salvageable for use here:

Cases decided by a country's Supreme Court, for example, sometimes become well-known because they express the court's "opinion" on how law is to be interpreted, which can have very wide implications. This usage of the word opinion is different from the common usage (outside the legal field), because the court's opinion is not the opinion of any person, but the court's decision after careful deliberation of the case, and is binding on relevant future cases in lower courts. When a multi-member court is less than unanimous, the majority opinion states the outcome of the case and the reasoning behind the court's decision. Other judges or justices on the court may write opinions concurring with or dissenting from the majority opinion.

-- Wikidemo 22:24, 13 August 2007 (UTC)

Legal Latin term identifying a decision as one that should not be held as precedent?

Judges can write in a decision that they don't wish for it to be used as precedent in case law. E.g., I have read that Bush v. Gore is such a case. Whether subsequent interpreters of case law will honor that wish, and whether judges should or do have the authority to specify this, I don't know (IANAL). My question is, is there a "legal Latin" term for this? I could swear that I've seen such a term before, but I can't think of any googling terms that lead me back to it. I keep thinking ad hoc ("to this", i.e., "regarding only the current instance"). But I'm not sure if ad hoc is really used that way as a term of art in law (because IANAL). Can any lawyer answer that? — ¾-10 16:47, 28 May 2008 (UTC)

Custom and case law are not precedents

I just took a quick look over here while considering suggestions for the Caselaw page and I cringed when I saw the last two listings for types of precedent. As to each:

• Custom is a source of law recognized within states that follow the civil law tradition. Custom is not a civil law tradtion version of case law, it is a completely separate source of law. Private custom, particularly within industries and professions, has also been considered by common law tradition courts (or at least courts in the USA, but I believe other common law states as well) for the purpose of determing what acts can be considered negligent. That use by the common law courts is a factual determination, not a legal one. But most important, though published cases using or recognizing custom may be precedent, the custom they recognize is not. Or, at least, no more so than the 13th Amendment of the Constitution of the USA is precedent because cases use it to rule that slavery is illegal.

• Case law is the body of precedents that a court may rely upon. It's the entire body of applicable precedent, whether to a single jurisdiction or group of jurisdictions.

I'm removing those two subsections from the article. IMHO (talk) 19:19, 14 February 2009 (UTC)

Merge with "stare decisis?"

The article on "stare decisis" is quite good (though it could use some work).

Would it make sense to merge the good material from this "precedent" article into the "stare decisis" article, and redirect?

Boundlessly (talk) 17:17, 11 November 2011 (UTC)

"rule of law" means "question of law" or "point of law"?

In the intro paragraph, when referring to a "rule of law", does that mean a "question of law" or "point of law"? This is an important facet of this whole thing, isn't it? That stare decisis is a legal precedent that binds a lower court to rulings on points of law, i.e. interpretations of law, by superior courts (not just any superior court, either, but a directly superior court)? If so, it should be wikilinked to that article whenever possible. Int21h (talk) 19:03, 27 July 2012 (UTC)

"Question of law" is something different -- is it decided by a judge (question of law0 or decided by a jury (question of fact). I agree with your latter observation, that "linked whenever possible" is a good practice, when the term is not an everyday one known to everyone. Boundlessly (talk) 03:08, 28 October 2012 (UTC)

When there is no precedent, what is there, really?

So I was editing some articles related to the Judiciary of Russia, and I was wondering what actually happens in those judicial systems that do not use precedent as we WASPs know it, like Russia, Germany, France, etc. There are other factors to be considered, facts that I am not sure, before Wikipedia (hell, even before I edited those articles, really), people really knew about. Like the fact that unlike the US Supreme Court, these European courts are not the same people from day-to-day or case-to-case; that is, a "court" does not decide a case, a "chamber" does. (And, of course, the thing everyone neglects to mention is that a chamber is a small subset of the court, and no one on Wikipedia knows how the subset is chosen.) So, given:

1. each case may be decided by completely different people, even within the same session ("chambers")
2. they don't have to follow previous decisions (no precedent)
3. its well known different people make different decisions in systems with precedent (eg the different US Supreme Courts, which are not bound by their own precedent)

what makes this "jurisprudence constante" in practice? I mean, especially if theres a chance you could appeal and get a completely different Supreme Court than yesterday -- or tomorrow? Are we English, American, Canadian, Australian, New Zealander, and Irish Wikipedians the only ones who know how our laws are interpreted and will be interpreted? I mean, hell, we have precedent and there are still thousands upon thousands of academic literature bodies debating what the law is -- after the Supreme Court just said what it was! Int21h (talk) 01:34, 22 December 2012 (UTC)

Remove the section: Rules of Statutory Interpretation?

The section, Rules of Statutory Interpretation, seems out of place in this article. Should it be removed? Sparkie82 (t•c) 09:08, 6 June 2016 (UTC)

Good point, perhaps remove section but add a "See also" Statutory interpretation? Qexigator (talk) 11:35, 6 June 2016 (UTC)

Removed section. Sparkie82 (t•c) 01:31, 26 December 2016 (UTC)

I disagree with this action, and restored the status quo ante, until there's some genuine discussion. Resolution of questions of statutory interpretation is one of the most important purposes of precedent. The right way to handle Sparkle82's question is to add a tie in for relevance.

Also, I am very puzzled at the edit of correct material explained by "remove unsourced content." The rule in MOS is that material must be capable of being supported by citation to reliable sources, not that the citation be there on the day that Sparkie82 happens by. Unless you have an informed basis to believe that something is in error, is not the correct approach to add a "citation needed" tag, not to remove? The latter smacks of vandalism.

50.169.56.27 (talk) 22:30, 10 January 2017 (UTC)

Wikipedia is not a textbook. See WP:NOT. If you want to write a legal textbook on legal analysis in general, please go write for the Wikibooks project. Statutory interpretation is not intrinsically part and parcel of precedent or vice versa; civil law systems do it all the time, even though the way they perform it is not guided by a system of precedents or stare decisis as in common law jurisdictions. --Coolcaesar (talk) 19:36, 11 January 2017 (UTC)

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Statutory interpretation in the U.K. : Golden Rule

According to this page, the Narrow Method application of Golden Rule is exemplified in Adler v George. But the wikipedia page to Golden rule (law) reads:"The leading case on the wider approach is Adler v George" ! There is a contradiction here. 03:15, 29 March 2018 (UTC) — Preceding unsigned comment added by Naytz (talk • contribs)

Ha! Well, now that golden rule page says that the rule can be applied with either the narrow approach OR the wide approach XD. problem fixed? Firejuggler86 (talk) 22:54, 21 November 2020 (UTC)

Way too many excessively long blockquotes

Whomever put in that many huge blockquotes wasn't trained properly in English composition. I figured out that writing consisting almost entirely of giant blockquotes is bad by the time I was 10 years old.

Good writing keeps the quotes short and seamlessly interweaves them into a coherent narrative or argument. Bad writing relies too much on excessive quotation (without adequate text to lead in or out of each quote) because the writer has no idea how to properly weave quotes together in his or her own voice. Any objections before I take out the garbage? --Coolcaesar (talk) 22:03, 5 October 2020 (UTC)

Statutory Interpretation in the UK - Purposive Approach

The article says that the Purposive Approach won't be used after the UK leaves the European Union. I'd think this would need a source, considering the purposive approach was defined in Pepper v Hart [1993] AC 593 which is quite clearly English law. 2A02:C7D:C532:BE00:3820:EBC4:F342:1A4C (talk) 20:58, 14 December 2020 (UTC)

This article is a total mess

This article is a total mess. I propose to clean up the following issues in three or four months or whenever I get around to it:

• Wikipedia is not a textbook. There are too many examples of particular instances of one subtopic or another in the article. The correct approach is to discuss a subject at a high level of generality, with minimal digressions to examples, and cite to sources to enable readers to look up such detail if they really need it. The laundry list of quotations from U.S. Supreme Court cases is wholly inappropriate for WP (or for that matter, any kind of formal English writing for either lawyers or laypersons); it looks like someone copied and pasted part of a law student's outline into WP. There are also many too many lengthy digressions into tangents of minimal relevance to the core topics of precedent and stare decisis, such as statutory interpretation, res judicata, and law of the case (which are all already the proper subjects of their own articles and do not require lengthy discussion here).
• Wikipedia must be verifiable. There are too many unsourced assertions, which is improper for a topic so heavily discussed and debated.
• Wikipedia is not a soapbox. There are too many discussions in body text of cases of questionable notability, such as McIntyre v. Balentine. In such cases, the relevant principle should be summarized (with the case merely cited in a footnote) and notable cases should be used whenever possible to illustrate such principles.
• Excessively long blockquotes. There are too many long quotes, which should be omitted, reduced, or paraphrased.

Any objections? --Coolcaesar (talk) 18:37, 9 May 2021 (UTC)

I only briefly skimmed the article but I agree with everything you noted. This is an absurdly long article with very few inline citations. I'm not familiar enough with the subject to be of much help here, but I think a clean-up by yourself or anyone else interested would be valuable. Rovenrat (talk) 23:48, 26 May 2021 (UTC)

I agree with this also. Statutory interpretation and res judicata content should me merged into the existing articles for those subjects. National laws should be organized into sections and details should be in linked articles. Comparative comments should be sourced. The cases cited should be notable ones. There are a lot of problems. We don't need to delete verifiable content but it doesn't all need to be in one article. Eunomia libri (talk) 21:50, 10 January 2024 (UTC)

Third Kind of Law?

The intro to the article makes mention that “Common-law precedent is a third kind of law” but nothing before explains what the other two might be. It looks like it was cut from somewhere else and the reference ignored or not noticed. I would fix it, but absent deleting it, it’s not clear how to do that. — Preceding unsigned comment added by Sychonic (talk • contribs) 03:02, 4 October 2021 (UTC)

Correct attribution for stare decisis disliking science (and mathematics?)

The article quotes Michael McHugh of the High Court of Australia saying judges navigate stare decisis from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point and avoiding the dangers of the open sea of system and science. According to others including the UK Supreme Court this was Lord Wright, The Study of Law (1938) LQR 185, 186.

Anyone know how to find this old book online?

I see on this Talk page that other people object to too many quotations, however, I think this is one that should be kept (but correctly sourced.) Stare decisis really does not like science, and I suspect it does not like mathematics either.

Dan Shearer (talk) 17:37, 23 January 2023 (UTC)

Interesting quote. Rather reminds me of Linear interpolation. I couldn't find the journal, but guessed that it might be included in a "collected works" of Wright, which it is: https://www.amazon.co.uk/Legal-Essays-Addresses-Wright-Durley/dp/1107452708. Some of the pages of the book are available here: https://www.google.co.uk/books/edition/Legal_Essays_and_Addresses/mzM9AAAAIAAJ?hl=en&gbpv=1&dq=Legal+Essays+and+Addresses&pg=PA417&printsec=frontcover

Talpedia (talk) 18:28, 23 January 2023 (UTC)

@Talpedia:

I couldn't find the journal, but guessed that it might be included in a "collected works" of Wright...

Good find, but no. The search function says there is no match for the word 'mariners' in this book.

Dan Shearer (talk) 14:49, 27 January 2023 (UTC)

Odd, the essay is listed in the table of contents. I wonder if it's not searching the missing pages. Talpedia (talk) 21:44, 27 January 2023 (UTC)

It may also be contained in Legal Essays and Addresses. By the Right Hon. Lord Wright of Durley. 1939. Cambridge University Press. I might just have access to some of this come to think of it via the Wikipedia Editors's journal access scheme. I'll check.

Dan Shearer (talk) 18:09, 28 January 2023 (UTC)

No. The Cambridge University Press paywall article from 2009 was hiding... a 2 page review written in the 1940s of a book published by Wright in 1939, which may (or may not) have contained his essay from 1928.

Dan Shearer (talk) 18:19, 28 January 2023 (UTC)

Introduction should be clearer

I have made the introduction less wooly, but there is much room for improvement.

For example, the generic e-law resources uk gives the following insufficient but much more direct explanation: The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.

I propose moving stare decisis to the very first sentence, with an explanation of the term.

Dan Shearer (talk) 12:27, 17 March 2023 (UTC)

"that law must be applied in all future cases containing the same material facts." Not in criminal law in the UK I believe? Also the troll / legal realist in me thinks "unless they don't like them, can think of a way of trying to distinguish the facts of a case, and are happy enough with the policy implications that they are willing to accept them... or if they can magically "fail to find" the particular precedent. Talpedia (talk) 12:38, 17 March 2023 (UTC)

Yes, that explanation is totally insufficient. But it is a useful model of clarity, while the current article is a model of woolosity (tweediness?)

Dan Shearer (talk) 12:50, 17 March 2023 (UTC)

Yeah, I guess we can accept a little inaccuracy in the lead in exchange for brevity. Talpedia (talk) 12:52, 17 March 2023 (UTC)