Regulate precedent
The rule of the precedent or stare decisis (Latin: to remain on the decision) is a legal provision applying particularly in the countries of Common law, i.e. the the United Kingdom (the Scotland making exception partly), and much of its old possessions, in particular the the United States, the Canada and the Australia. This rule wants that the courts make decisions in conformity with the former decisions.
In the countries of Common law, on the one hand, a big part of the right is a common law, not written in laws or payments, and on the other hand, it is considered that the precise direction of these habits or uses - as of the written laws - lights only when courts had to apply it in concrete situations. It is jurisprudence, accumulation of decisions (precedents), and in particular, motivations ( ratio decidendi ) that the judges give some who constitutes the essence of the law, more than the law it even. One speaks about box law , law resulting from the judgments, which one can roughly represent by jurisprudence.
In this context, the Legal security, which wants that one can reasonably know the law requires that jurisprudence be actually respected. In their stops, the courses quote regularly of many former decisions on which they base their decisions, much more than the law it even. The rule of the precedent always is essential on the courses lower as for the decisions of their courses of calls. Thus, in England, the county courts, for example the Magistrates' Court must strictly conform to the most recent jurisprudence of the Crown Court , it even dependant on that of the High Court . Still above, is the Court off Appeals , and finally, the legal Comité of the House of Lords, which slices in last spring and whose jurisprudence is essential on all. On the other side of the Atlantic, the former decisions of the Supreme court of the United States are essential ( bind ) on all the other courses, which it are federal or raise of a State. Low in the hierarchy, the courts conform to the decisions of the court of call (the short District respect the jurisprudence of the off runs Appeals on which they depend, and district runs as runs Appeals off respect the jurisprudence of the Supreme court; the district runs on the other hand are not bound by the decisions of the runs Appeals off other than that on which they depend: it can quote their decisions, but nothing obliges them to conform to it).
The principal question which arises as for the rule of the precedent, is when not to apply it. The courses lower are strictly bound by the precedents of the superior courts. But a court is not inevitably bound by its own precedents. It is never the case in the United States. On the contrary, the British tradition imposes that a court is held with its own precedents, at least when it acts of the courses most important, those whose decisions are sources of right. However, since 1966, the House of Lords is explicitly released from this obligation, which allows, very exceptionally, to revoke obviously unsuited or unjust precedents become. With the the United States, the supreme court much more frequently does it. The difference is undoubtedly due so that in Great Britain, the Parliament can, by a new law, to put an end to a jurisprudence which displeases to him. On the contrary, when the Supreme court of the United States bases its decision not on a law, but on the Constitution, only a modification of the constitution would make it possible to return above, which makes desirable a greater flexibility of the court. It is clearly however that the legal security requires that the use of this flexibility remain limited. In all the cases, the new decision forms a new precedent, which erases former jurisprudence and is essential on the courses lower.
In practice, there exists another means for a court of deviating from the rule of the precedent, which it is about one of its own decisions or those of a superior court. It is the technique of the distinction ( distinguishing ). The court must show in what the business which it judges is distinguished from those previously judged, and why the precedents cannot apply to it fully. By doing this, it does not call into question jurisprudence, it supplements it. All the art of the lawyer of common law ( common lawyer ) thus consists in knowing to determine when two cases are identical, or when they are different. That can lead to long discussions on the facts of the cause, and sometimes to some artificial solutions when one wishes to deviate from a precedent encumbering without to reverse it. On a more positive level, that made of the Anglo-Saxon lawyer a lawyer subtle and ready to distinguish if the application of a traditional solution would lead to a nonsense.
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