cf Raz, The Authority of Law (n 12) 185; Lamond, Do Precedents Create Rules? (n 7) 17; Gardner (n 9) 80. The methodological approach I have adopted is vital for sorting out possible factual counterexamples. How would both modes treat such a decision? Oxford University Press is a department of the University of Oxford. (Pdf) the "Source of Law" Category Many thanks to the participants in that seminar, in particular to Claudio Michelon, Joaqun Reyes, Maggie OBrien, Euan Macdonald, David Cabrelli, Amalia Amaya, Mara Ignacia Besomi, JP Fassnidge, George Dick and Ismael Martnez. See eg D Lyons, Formal Justice and Judicial Precedent (1985) 38 Vand L Rev 495; F Schauer, Precedent (1987) 39 Stan L Rev 571, 595602; L Alexander, Constrained by Precedent (1989) 63 S Cal L Rev 1, 26 and 51; R Cross and JW Harris, Precedents in English Law (4th edn, Clarendon Press 1991) 1112; N Duxbury, The Nature and Authority of Precedent (CUP 2008), ch 5; L Alexander and E Sherwin, Demystifying Legal Reasoning (CUP 2008) 357; J Waldron, Stare Decisis and the Rule of Law: A Layered Approach (2012) 111 Mich L Rev 1, 31; N Varsava, How to Realize the Value of Stare Decisis: Options for Following Precedent (2018) 30 Yale JL & Human 62, 703. E Steiner, French Law: A Comparative Approach (OUP 2010) 91 (emphasis in original). PDF Custom as a Source of Law - Cambridge University Press & Assessment By contrast, the same reason may be normatively weaker if, say, the precedent was reached by a lower court, or a court composed by one judge only. Sources of Law (Unwritten Law) | PDF | Precedent | Sharia 4K views 47 pages Sources of Law (Unwritten Law) Original Title: 5. But in order for the law to allow this, the law cannot suffer changes too frequently. Although this is true, there can be grey areas, such as a legal system where the obligation of courts to follow precedent is not de jure but de facto.98 This situation can be problematic, for though, under a persuasive mode, the content of the law cannot be changedagain strictly speakingby how courts apply the law, courts can nevertheless lead people to think that applications of the law are themselves part of the law. Stevens, Reasoning by Precedent (n 6) 218 characterises the situation of a later court that has not found a non-excluded reason against following precedent as having a binding reason to follow precedent. ), Commitments are a good example of a positive second-order reason. In other words, the obligation of later courts under the authoritative mode has disjunctive form: either to follow or distinguish the precedent.79 Distinguishing, in particular, is the practice by which the later court shows that the present case has a novel fact not captured by the precedent, and which is legally relevant for handing down a different decision. To be sure, any descriptive account of what courts doeg how they reason using precedentsis potentially subject to counterexamples. By New Jersey Law Journal | July 10, 2023 at 12: . Both values demand that the content of the law remain stable over time, so that people can rely on it to adopt decisions. and (ii) How does each mode avoid replicating substantively incorrect decisions? But, secondly, if a relevantly similar dispute arises between other parties in the future, the later courtin the civil lawmay be prevented from reaching a legally justified decision solely by following precedent. If a later court wants to distinguish, as we saw above, then it must provide reasons showing that the case at hand presents a novel fact that is relevant for the decision. Otherwise, we face two crucial objections: one descriptive, the other normative. The descriptive objection would argue that many courts follow precedents independently of their correctness.56 The normative objection, by contrast, would insist that, if precedent-following is to make a contribution to the rule of law, it should not depend on a later courts sympathy with the precedent.57. Ascertain the purpose of the US and state constitutions. Accordingly, not following precedent when it appears right to do so is a non-excluded reason.91 In contrast, in Young v Bristol Aeroplane Co Ltd,92 the Court of Appeal (Civil Division) declared itself to be bound by its own precedents, with three exceptions: (i) where two of these precedents would conflict with each other; (ii) where one of these precedents is incompatible with a decision of the House of Lords/Supreme Court; and (iii) where a precedent was given per incuriam. The question is whether the non-contingent reason to follow precedent should stay as a minimum requirement or should be reinforced. Judicial precedents refer to the decisions given by courts in different cases. Whether an account is fully descriptive or may be detached, to a sensible extent,75 from a certain practice depends on the accounts purpose. Legislation as A Source of Law - LawBhoomi The list of sources in Article 38 of the Statute is frequently criticised for being incomplete. K Stevens, Case-to-Case Arguments (2018) 32 Argumentation 431. Judicial precedent is therefore that source of law in which the past judgments create a set of rules and laws for judges to look back at and refer to for any guidance in their cases. 35 "Rules are conventional social practices if the general conformity of a group to them is part of the reasons which its individual members have for acceptance; by contrast merely concurrent practices such as the shared morality of a group are constituted not by convention but by the fact that members of the group have and generally act on the same but . In any event, for now we need only to bear in mind that the specific content of the obligation to follow precedent is a matter of discussion in the common law. Contrary to this state of affairs, as I have argued, equality requires later courts to give reasons why they will depart from past decisions. For legal theorists,law, justice and jurisprudence are dis-parate, though kindred phenomena. But since this reason does not exist in the null model, parties are left to whatever assessment of the correct scenarios the court deciding the case makes. If there are two correct ways of deciding the case, but the fact that one of them is supported by precedent does not count in the balance, then ceteris paribus parties have a 50% chance of anticipating the courts decision rightly. Notice that the claim here is a modest one. Ascertain one purpose of statutory law. It does, however, ground a content-independent reasonagain, pro tanto. The possibility of the null model is valuable for two reasons. But once these central features are picked, there is room for a sensible detachment from practicesee n 76 below. This reason entails both a reason to decide the dispute in conformity with the precedent and an exclusionary reason not to decide the same dispute on certain reasons against following the precedent. See also Tamanaha (n 21) 34, 667, 71, 934, 96 and 119; Waldron, The Concept (n 21) 6; J Raz, The Laws Own Virtue (2019) 39 OJLS 1, 35. the practices which gives effect to that rule. This reason is grounded on the idea that, by doing so, a legal system has a distinctive way to advance at least the following values: maintaining legal stability, allowing people to rely on reasonable expectations and providing equality in the judicial application of the law.2 I will call these values respectively stability, reliability and equality. Now, because some may think that stability has value in its own right, I have decided to keep stability and reliability as separate values. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Law.com Network of Sites . Tuesday Newspaper. Again, according to weak precedent-following, you do not have such a reason if it was wrong to allow Claudia to drink wine. Stability seems valuable only when we have awareness of something remaining stable and can thus be relied upon for future decision making. Other Sources . I will also ignore alternative ways of speaking of precedents, such as the erga omnes force of judicial decisions,5 the constant jurisprudence of courts and the common law. The point is that, to the extent that there is considerable agreement in the literature in identifying stability, reliability and equality as rule-of-law values, we can call these values collectivelyand for current purposes onlythe rule of law. Precedents are often given legal status, but they are not created by a democratic process. See Twining and Miers (n 55) 285 fn 48, discussing Re Spectrum Plus Ltd [2005] UKHL 41, where the House of Lords concluded that, in order to do so, it would have to be an exceptional case. See eg Lamond (n 7) 15, arguing that Any satisfactory view of precedent must see distinguishing as an integral part of it rather than as an add-on or quirk of the common law. cf G Postema, Some Roots of our Notion of Precedent in Goldstein (n 35) 31. On the other hand, many scholars have focused exclusively on precedent in either the common law or the civil law. Or is such an obligation, as Grant Lamond claims, to treat the precedent as correctly decided on its facts?82 The fact that this debate is still ongoing makes it difficult to provide a clear-cut answer.83 My own view, which I hope to provide in detail soon, is that the obligation of a later court is to respect the decision of the earlier court to treat certain established facts as material, to give them a particular legal significance and to decide on the balance of reasons.84 This view would lean towards that of Lamond and later developed by John Horty.85 It can be summarised as follows: the later court must render a decision that is consistent with the authoritative treatment that the earlier court gave to the facts or factors of the precedent, as these were reported. In The upshot is that the non-contingent reason to follow precedent is a minimum requirement of the rule of law. The law, in other words, needs to be stable. Check the source of law you think most affects people in their everyday lives: Why did you select this source of law? In this new scenario, judges may treat the reason in favour of following precedent as a weak, non-protected reason. Notably Alexander and Sherwin (n 2) 122: The rule model of judicial decision making has no conceptual room for the practice of distinguishing rules; ibid 123: distinguishing rules is logically equivalent to repealing rules at will. Winston seems to have in mind epieikeiaequity, a corrective to laws generality. John Gardner wrote that judges should first and foremost administer justice,9 and before him HLA Hart held that we naturally think of justice as being administered according to law.10 This complex relation has contributed to the way we have historically called courts, shifting between courts of justice and courts of law.11 Today it is not controversial to say that, when courts decide disputes, and thereby attempt to deliver justice, they do so by applying the law to the case at hand. This debate between common law scholars has one consequence for our analysis. By deciding on the balance of reasons, I mean establishing the necessary and sufficient conditions for reaching a justified decision. X. It can give you now a reason for following a past decision you know is incorrect. Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies. Judicial Precedent as a Source of Law - Legal PaathShala Discussing Dworkins views on precedent, see also S Perry, Judicial Obligation, Precedent and the Common Law (1987) 7 OJLS 215, 2236. They unpack the mean-ing, nature and character of the law. But the practice of following precedent is not something we should take for granted. Now, we should bear in mind two things. The latter stresses the idea that the similarities between the two cases should be relevant in the eyes of the law.6. As we can see, the structure of the persuasive mode allows room for various scenarios. Law.com Network of Sites . Sebastian Lewis, Precedent and the Rule of Law, Oxford Journal of Legal Studies, Volume 41, Issue 4, Winter 2021, Pages 873898, https://doi.org/10.1093/ojls/gqab007. 21-476, it agreed to decide only one question: "whether applying a public-accommodation law to compel an artist . The article explains them in detail. It seems, therefore, that the authoritative mode places more value on advancing the rule of law than on deciding cases correctly, at least where this correctness entails contravening established precedent.102 By contrast, the weakness the persuasive mode showed in the last subsection can now be seen as virtues in relation to the value of deciding cases correctly. Now, the logic of grounding precedent-following in the rule of law does not necessarily preclude bottom-up stare decisisie higher courts being bound by the precedents of lower courts. For a lower court to hand down a substantively correct decision, the Supreme Court would have to overrule its precedent and issue a new decision that is substantively correct. It may depend, for example, on the particular composition of a court at a given time. Following familiar terminology, I will call them persuasive and authoritative.74 I will start with the latter, because it presents complexities worth disentangling from the outset. See R Dworkin, Hard Cases (1975) 88 Harv L Rve 1057, 1087101; R Dworkin, Laws Empire (Harvard UP 1986) ch 7. In order to avoid this, judges should not follow precedent. This situation fosters reliability: people know in advance what courts have an obligation to do when they face a precedent-governed dispute. It could be objected that nothing in the nature of the civil law would require this practice, but it would be part of the common law. Persuasive Precedents 5.5. If, for instance, one has good reasons to pursue a particular project, a commitment can be a second-order reason to act on these reasons. This process is generally known as subsumption, and though the margin for discretion might be reduced, adjudication will often require sensible judgment. Therefore, depending on a legal systems commitment to the rule of law, we can identify two modes of precedential reasoning. Published by Oxford University Press. Many of our normative practices are influenced by the force that past decisions exert on similar, future situations, in favour of reaching the same result as before. What is Statutory Law . I do not think there is a unique answer here; it depends on the history of the legal system, its legal tradition and practices, and the values people in that system hold dear. For example, an authoritative treatment in one common law country may appear as a persuasive treatment in another common law country. In F Schauer, Thinking Like a Lawyer (Harvard UP 2012) 412, Schauer claims that the justifications for precedential constraint [vertical stare decisis] are fairly obvious: lower court judges are expected to follow the instructions of those courts above them in what the military calls the chain of command. But subsumption does not exhaust the adjudicatory work of judges: they still have to determine whether the norm should be applied all things considered. Both have been a debated topic in the literature. My aim is to explain the practice of following precedent in law and provide criteria for evaluating its value. It is valuable that people know what the content of the law is, what the law commands, allows and forbids, for when people have this knowledge, they can rely on it as valuable information to adopt decisions that will impact their lives. I have posed two evaluative questions, but much more could be said. 199. Thus, to the extent that the later court has a reason to follow precedent, that reason has a normative nucleus that will not be affected by whether the precedent was rightly or wrongly decided. In particular, it is vital that the reason to follow precedent does not depend on whether a later court agrees with the precedents correctness. In doing so, the article aims to explain the practice of following precedent in law and to offer criteria for evaluating its value. I will start from the rule of law and then articulate two modes of precedential reasoning that are consistent with this ideal. To begin with, applying a norm requires determining, and eventually justifying, whether certain facts of the world fall within the norms scope. An excellent elaboration of laws claim to authority can be found in Gardner (n 9) ch 5. See n 4 above. Common law follows the principle of stare decisis (Latin, meaning "stand by your decision"). The qualification strictly speaking (in the text) is important because there could be a grey area, which I cannot explore here, where norms that provide a reason only, as opposed to a protected reason, could nonetheless become legal norms. But it is important not to take it for grantedobserving also, as others have done,49 that sometimes following precedent may not necessarily advance the rule of law. Against this view, see Duxbury (n 2) 34, for whom the common law does not need the doctrine of precedent in order to function. Read the Supreme Court decision on affirmative action : NPR In England, J Raz, The Authority of Law (2nd edn, OUP 2009) 184 fn 8 writes: In English Law [the doctrine of precedent is] in fact part of the rule of recognition. This claim is extended to all common law countries by S Legarre and JC Rivera, Naturaleza y dimensiones del stare decisis (2006) 33 Revista Chilena de Derecho 109, 112. Justice and courts have always had a complex relationship. To begin with, one can imagine legal systems where courts do not pay attention, in a normatively significant way, to the ways in which similar disputes have been decided in the past. (Pdf) an Overview of The Legal System in Uganda This reason is a minimum requirement of the rule of law, and in some cases this reason may be reinforced in the form of an obligation. For various reasons, most of which have to do with effective action-guiding and better coordination between courts, a legal system may restrict the scope of the precedents that later courts must follow. A Marmor, Should Like Cases Be Treated Alike? (2005) 11 Legal Theory 27, 29. cf Hart (n 10) 128; L Duarte dAlmeida, Allowing for Exceptions (OUP 2015) 184. As Neil Duxbury writes, Even a decision widely considered wrong might continue to be followed if people have reasonably relied on it arranging their affairs.70. An earlier version of the article was presented to the Edinburgh Legal Theory Discussion Group. It goes without saying that this ad hoc terminology does not prevent other values from being part of the rule of law. Judicial Precedent in Zambia All these outcomes, further, are justified by law. PDF Answers Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts. This makes room for the possibility that a precedent could be authoritative (in a loose sensesee n 74 above) without being part of the law. The distinction between horizontal and vertical precedent does not play a crucial role in the valuable contributions of EM Wise, The Doctrine of Stare Decisis (1975) 21 Wayne L Rev 1043; Lyons (n 2); Alexander (n 2); G Lamond, Do Precedents Create Rules? (2005) 11 Legal Theory 1; J Horty, Rules and Reasons in the Theory of Precedent (2011) 17 Legal Theory 1; Varasa (n 2); Stevens (n 6). But I would hesitate to call this tendency a full-blown system of stare decisis. How can an agent be justified in performing an action she knows to be incorrect? Sources of The Law PDF | PDF | Precedent | Common Law - Scribd The reason is not because I reject substantive versions of the rule of lawa point we need not settle here. The term "source of law" may sometimes refer to the sovereign or to the seat of power from which the law derives its validity. This will depend on other, possibly complementary jurisprudential views about laws authoritativeness. On the disputed nature of the rule of law, see J Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)? (2002) 21 Law and Philosophy 137, 159; P Burgess, The Rule of Law: Beyond Contestedness (2017) 8 Jurisprudence 480, 481. Once a court has delivered a judgement on a particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases . Drawing from contributions on argumentation theory58 and practical reasoning,59 I will argue that a legal systems commitment to the rule of law can justify later courts in following precedents they know to be wrong. Judicial precedent is also known as stare decisisin Latin, which literally SOURCES OF LAW | The Cambridge Law Journal | Cambridge Core PDF Sources of International Law: An Introduction - United Nations In many countries, furthermore, there is still considerable disagreement as to whether precedents should bind later courtsfor a list of scholars who, in Spain, reject this view, see T Garca-Berrio Hernndez, La Controversia sobre el Precedente Judicial: un Clsico del Derecho en Constante Renovacin (2006) 4 Foro, Nueva Epoca 127, 1456. Now, one should be careful not to conflate precedent-following with treating like cases alike or to ground the former in the latter. Take cases of statutory vagueness, or where there are various candidates for a correct interpretation of the statute, or where applying the norm would conflict with a moral consideration. When, conversely, these two cases are legally different, a later court may distinguish. Governs behavior of individuals in society. Binding effect of Precedent 5. Authoritative precedents 5.2. In many cases, precedents are authoritative sources of law, in the sense that if the facts in a later case are legally the same as those of a precedent, the later court is often required to deliver the same decision. See eg Tamanaha (n 21) 119; T Bingham, The Rule of Law (Allen Lane 2010) ch 9; Waldron, The Concept (n 21) 78; J Waldron, The Rule of Law and the Importance of Procedure (2011) 50 Nomos 3, 6. The reason is that formal versions have substantive implications and the substantive versions incorporate formal requirements.28 Other scholars have shared similar worries.29, Importantly, for the purposes of this paper, I will adopt a modest understanding of the rule of lawone usually associated with formal versions. Conformity to precedent is a distinctive means to advance the rule of law. Accordingly, the civil law may share features of the authoritative mode, while the common law may share ones of the persuasive mode.76, Under the authoritative mode, whenever a precedent-governed dispute arises, the later court has a protected reason to follow precedent. The null model, as such, is a way to appreciate these values by conceiving of a legal system where the same practice does not exist. cf Wise (n 7) 10578. Since there is significant literature on the topic,1 I will do this by defending two connected and novel claims. Parties can rely before litigation on the fact that courts always have a reason to decide disputes in conformity with relevant precedent. That decision was, in other words, a mistake. It Affects Me! See eg A Marmor, Soft Law, Authoritative Advice and Non-binding Agreements (2019) 39 OJLS 507. Content Source. One way to avoid this non-democratic upshot is by giving judicial decisions relative force only, thus restricting the influence of precedents on later courts. Tamanaha (n 21) 102; similarly, ibid 111. PDF The Canadian Legal System Drawing from a comparative analysis including both civil law and common law jurisdictions, Aleksander Peczenik concluded that precedents typically perform the following roles: (i) they bind formally; (ii) they have normative force but do not bind formally; (iii) they are neither formally binding nor have any normative force, but provide further support (see note 19); and (iv) they serve to illustrate points of law.19 Peczeniks conclusion makes room for the proposition that the existence of a relevant precedent may make no normative difference in the decision of a later court. Rank the three sources of law, from highest to lowest. To illustrate: by virtue of the 1966 Practice Statement,90 the House of Lords (today the UK Supreme Court) is authorised to overrule its own precedents when it appears right do so. Sources of Law (Unwritten Law) Uploaded by Nureen Elysya Bt Sakya Description: unwritten law Copyright: All Rights Reserved Available Formats Download as PPT, PDF, TXT or read online from Scribd As Kenneth Winston observes, judges may refrain from applying a law to a case that it clearly covers, for example, on the ground that there are features to the case that were not anticipated.39 Conversely, complexity in subsuming facts is a reason for the case to be seen as a hard one. And the rule of law is an ideal worth pursuing. Sources of law - Wikipedia But are such customs legally binding? The first subsection argues that one distinctive way to advance the rule of law is by requiring courts to always decide precedent-governed disputes by following precedent. This situation can be problematic because that de facto obligation depends mostly on contingencies of the legal system in question. Both options are always possible, given the large field of ongoing adjudication. More importantly, sometimes this commitment can be the sole reason for why one perseveres on the chosen pathsay, because ones initial reasons no longer exist, such as when ones preferences, or the circumstances of life, have changed. Without it, we are susceptible of going back to the null model. Unlike before, where I proceeded bottom-up,46 this time I will proceed top-down. See Twining and Miers (n 55) 284 for some instances in which the House of Lords has acted on this non-excluded reason. By showing that the null model is both conceptually possible and we may find arguments supporting it, this offers a useful baseline against which precedent-following can better be assessed. For ease of reference, I will follow this familiar terminology, hoping to provide a consistent understanding of what it means to treat precedents as either authoritative or persuasive. This conclusion is supported by the fact that, as we saw before, many civil law courts may reach legally justified decisions even if they have contravened or otherwise ignored relevant precedent. Case laws are developed by the courts whereas enacted laws come into the courts ab extra. See eg P Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework (1997) Public Law 467; Tamanaha (n 21) chs 79; Waldron, The Rule of Law and the Importance of Procedure (n 23) 45; Waldron, The Rule of Law (n 24); A Zanghellini, The Foundations of the Rule of Law (2016) 28 Yale JL & Human 213, 214. Fundamentals Level - Skills Module, Paper F4 (BWA) Corporate and Business Law (Botswana) December 2011 Answers 1 This question requires candidates to discuss judicial precedent as a source of law in Botswana citing its advantages and disadvantages.
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