Precedents also improve efficiency. The use of the accumulation of legal norms helps judges to resolve disputes. If judges were to revive the law in each case, they would add more time to the trial and redouble their efforts. Law professors in common law traditions play a much less important role in the development of jurisprudence than professors in civil law traditions. Since court decisions in civil law traditions are short and do not lend themselves to setting precedents, much of the presentation of law in civil law traditions is done by academics rather than judges; This is called doctrine and can be published in articles or journals such as the Recueil Dalloz en France. Historically, common law courts relied little on case law; Thus, at the turn of the twentieth century, it was very rare for an academic writer to be cited in a legal decision (with the possible exception of academic writings by prominent judges such as Coke and Blackstone). Today, academic writers are often cited as a persuasive authority in legal arguments and decisions; They are often cited when judges try to implement arguments that other courts have not yet adopted, or when they feel that the academic`s reformulation of the law is more convincing than can be found in precedents. Thus, common law systems adopt one of the approaches that have long been common in civil law jurisdictions. On many issues, reasonable people may disagree. If two of these people are judges, the tension between two precedents can be resolved as follows. There is a lot of discussion about the virtue of using stare decisis. Proponents of the system, such as minimalists, argue that adherence to precedents makes decisions “predictable.” For example, a contractor may be sufficiently certain that he is predicting a decision if the facts of his case are sufficiently similar to those of a case already decided.

This is consistent with arguments against retroactive (ex post facto) laws prohibited by the U.S. Constitution. The courts of England and Wales are free to take into account the decisions of other courts and give them such convincing weight as the English court deems appropriate, even if such other decisions do not constitute a binding precedent. Jurisdictions closer to modern English common law are more likely to be given convincing weight (e.g. B Commonwealth countries such as Canada, Australia or New Zealand). Convincing weight could be given to other common law courts such as the United States, where U.S. courts have been particularly innovative, e.B. in product liability and in certain areas of contract law.

Precedents considered over time can be used to establish trends and thus indicate the next logical step in developing interpretations of the law. If, for example, immigration has been increasingly restricted by law, the next legal decision on the subject may serve to restrict it even further. The existence of submerged precedents (reasoned opinions not provided by conventional legal research sources) was identified as a potentially distorting force in law-making. [27] Precedent is a legal principle created by a court decision that provides an example or authority for judges who later rule on similar issues.3 min read In the U.S. legal system, courts are established in a hierarchy. At the top of the federal or national system is the Supreme Court, and below it are the lower federal courts. State judicial systems have hierarchical structures similar to those of the federal system. In a “first-impression case,” courts often rely on convincing precedents from courts in other jurisdictions that have already dealt with similar issues. A convincing precedent can become binding by its adoption by a higher court. Convinced of the mistakes of the past, this Court has never felt compelled to follow precedents.

In constitutional matters where correction depends on an amendment and not on legislation, this Court has, throughout its history, freely exercised its power to review the basis of its constitutional decisions. The use of precedents was justified to ensure the predictability, stability, fairness and effectiveness of the law. Building on precedents contributes to the predictability of the law by providing information about a person`s rights and obligations in certain circumstances. A person considering an action has the ability to know the legal outcome in advance. It also means that lawyers can provide legal advice to clients on the basis of LEGAL STANDARDS. The application of the doctrine of stare decisis from a superior court to a subordinate court is sometimes referred to as vertical stare decisis. In federal systems, the separation between federal and state law can lead to complex interactions. In the United States, state courts are not considered inferior to federal courts, but represent a parallel judicial system. In deciding whether to set a precedent, the courts consider the “feasibility” of that precedent.

This survey examines whether the rule of law announced by the precedent “has tended to create inconsistent applications, promote clarity and uncertainty, or has proven difficult to manage in a principled manner.” [21] A precedent is more likely to be overturned when it announces “nebulous, vague, judicially developed norms that are not well anchored in legal texts or traditions.” [22] In the United States, courts have always concluded that the text of the law is read as written, using the ordinary meaning of the words of the law. In a situation of conflict of laws, as in the Universal Declaration of Human Rights, the norms and principles of the common law of ius cogens erga omnes are considered to prevail to varying degrees in different jurisdictions, which means that they are used to “read” laws, that is, to give them a certain deliberate interpretation, for example, the case law of the European Court of Human Rights (case law). [16] A lower court cannot rule against a binding precedent, even if it considers that the precedent is unjust; The lower court can only express the hope that a higher court or the legislator will reform the regulation in question. If the court finds that the evolution or trends in legal reasoning do not render the precedent useful and wants to circumvent it and further develop the law, it may either declare that the precedent is inconsistent with subsequent authority, or that the precedent “should be distinguished by a substantial difference between the facts of the cases. If this decision is appealed, the Court of Appeal will have the opportunity to consider both the precedent and the impugned case, and perhaps to override previous jurisprudence by creating a new precedent of higher authority. This can happen several times as the case progresses through successive calls. Lord Denning, first of the High Court of Justice and then of the Court of Appeal, provided a famous example of this evolving process in his development of the concept of confiscation, beginning with High Trees: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B.

130. In practice, courts can usually find precedents for any direction they want to take to decide a particular case. Therefore, precedents are often used to justify a particular outcome in a case because they are used for decision-making. The corpus of court decisions contains the points used to formulate and decide a case before a court. In other civil jurisdictions, such as the German-speaking world, the ratio decidendi tends to be much more developed than in France, and courts often cite previous cases and teaching authors. However, some courts (such as . B German courts) place less emphasis on the particular facts of the case than the common law courts, but place more emphasis on discussing various doctrinaire arguments and determining the correct interpretation of the law. According to the literal rule, the judge should do what the law itself says, rather than trying to do what he thinks it means. The judge should use the ordinary simple and everyday meaning of words, even if it leads to an unfair or undesirable result. A good example of problems with this method is R v Maginnis (1987)[44], in which several judges found several different meanings of the word Supply in individual opinions.

Another example is Fisher v. Bell, where it was found that a merchant who placed an illegal item in a window with a price tag did not make an offer to sell because the precise meaning of “offer for sale” in contract law was merely an invitation to treatment. As a result of this case, Parliament amended the statute in question in order to put an end to this divergence. In Payne v. In Tennessee, the Court struck down two precedents: Booth v. Maryland [26] and South Carolina v. . .