Legal precedent in countries characterized by a common law system is the main tool in law enforcement practice. Such states include the United Kingdom, the United States, Canada, New Zealand.
Nevertheless, this tool is not the only one, along with it the judiciary is also governed by laws. But in some cases they are too generalized and, based on them, it is very difficult to resolve a court dispute.
In different countries, the rules for applying legal legal precedent differ from each other. In Russia, this form of law, although present, is applied only in individual cases.
Definition
Legal precedent is a decision taken in a particular case. It is given the force of a legal norm, which will be applied in future when resolving cases of a similar nature. Thus, the precedent is a kind of standard, a model by which specific disputes are resolved.
Moreover, its difference from the law is that its creation does not occur through adoption by an authorized law-making body, but directly in a court or administrative instance.
If you apply a broad approach, it should be noted that in this understanding, case law also includes the methods used by judges and administrative authorities in creating precedents, as well as the legal culture developed in this case.
Origin
Legal precedent as a source of law appeared in ancient times. The first collections of laws in the earliest states, such as Ancient Egypt, the Babylonian Kingdom, were compiled on the basis of existing jurisprudence.
In ancient Rome, precedent edicts or decisions of other magistrates were analogues of precedents. At the first stage, they were mandatory only for the magistrates themselves, who accepted them for a certain period of time. Later, those edicts that were the most successful, gained a steady character and formed a system of mandatory norms, entering the institute of praetor law.
Case law in its classical form appeared in England. This happened after its capture by William I the Conqueror in the XI century, when the creation of the royal traveling ships took place. On behalf of the crown, they resolved matters with a field trip.
Decisions made by judges were taken as a basis by other courts when they considered similar cases. Since the 13th century, the array of disparate legal acts has been replaced by a single system of legal precedent for the whole of England, which has received the name “common law”. It exists today along with other systems.
Varieties
There are two types of legal precedents:
- Judicial - is the decision of a judge, taken by him in a particular case and considered as binding on courts belonging to the same or lower court. Judges are obliged to be guided by him when they deal with a case similar to the case law. And also, when it contains an example of the interpretation of the law, which will henceforth be taken as a model. This is the so-called precedent for interpretation. As mentioned above, the source of law in question is inherent in the Anglo-Saxon legal system that exists in England, the USA, Australia, Canada, New Zealand, Australia, and other former British colonies, now members of the Commonwealth.
- Administrative - this is the behavior of an official or state body that has already been implemented at least once and can be used as a model under similar circumstances.
Structure
If we consider the most common approach, then, in accordance with it, the precedent form contains two parts.
- The necessary basis for the decision is the rule itself, which forms the rule of law.
- The above said - other circumstances on which the decision is based.
At the same time, it is not the duty of the judge to determine what is the necessary basis in the decision and what other circumstances. Another judge is already engaged in this, who determines whether this decision is a precedent for the case that he is considering.
When fulfilling the rule of judicial precedent, only the first of the considered parts is binding, while the second is not binding.
UK practice
As mentioned above, in different countries the use of such a legal institution as a precedent occurs in different ways. So, for example, in the UK, the following rules exist on this subject:
- For all courts without exception, decisions are made by the House of Lords.
- Those decisions that are made by the Court of Appeal are binding on both the court and the lower courts.
- The credibility of a legal precedent in the UK depends on his age: the older he is, the more authoritative.
In the united states of america
Due to the fact that in the United States, unlike Great Britain, there is a federal structure, there are no such strict rules for the use of precedent. Therefore, both the US Supreme Court and the supreme courts of each state must not follow their own decisions.
The states are independent, and each of them has its own judicial system, and therefore judicial practice. It should be noted that the precedent cannot be the decision of any court. This applies only to decisions of higher courts considering specific cases.
In Israel and in Russia
The rules of action for judicial precedent in Israel are determined by the 1984 Basic Procedure Law. There are two varieties of the legal form under consideration by us in legal force. So, there are precedents that have:
- binding force;
- are advisory in nature.
Case decisions made by the Israeli Supreme Court are binding on all courts except the Supreme Court itself. And precedent decisions of other courts are advisory in nature for courts belonging to lower instances.
In our country, where the principles of the Romano-German legal system, based on the law as the main source of law, are used, the concept of legal precedent is also used. But it is very limited and reduces, in essence, to the interpretation of law and is expressed in the form of decisions of the Supreme Court, where the general norms of the law are detailed and concretized.
Benefits
The advantages of a legal precedent as a source of law include the fact that, in comparison with the general rule of law, it is capable of more accurately and objectively reflecting the specifics of each case individually. When using it, the decision made by the judge is the result of following the norms of not only legislation, but also logic and common sense.
The law enforcer focuses on his own legal consciousness, worldview, worldly experience, moral values prevailing in society. In addition, the advantage is dynamism, which sets a precedent from other legal sources. After all, the judge has the opportunity to make a decision, given the changes that occur in the country and the world.
disadvantages
Among the shortcomings of case law, it should be noted the possibility of arbitrariness on the part of the law enforcer, since judicial precedent that does not correspond to a specific case can be taken as a basis. In addition, the judicial precedent does not have such authority as is inherent in a normative act.
A significant drawback is the fact that the range of precedents, among which the judge is forced to choose, is very extensive. Therefore, the possibility of free orientation in them is very difficult. In addition, new precedents are constantly being added that need to be tracked promptly.
Having described the advantages and disadvantages, we give an example of a legal precedent.
Black vs Sotheby's
An example of a legal precedent is the resolution of a dispute in the case of Mr. Black to the Sotheby's auction house. For a long period he collaborated with the latter and decided that his commission in comparison with the remuneration of sellers of luxury goods is too small. The lawsuit filed in 2000 with the New York District Court was won by Black. This created a precedent, followed by many of the same claims that were won. At the same time, the judges in making decisions were guided by the case of Black v. Sotheby's.