Case law in common law countries is the set of decisions of arbitral tribunals or other decisions that can be cited as precedents. In most countries, including most European countries, the term is applied to any set of legal decisions based on previous decisions, such as previous decisions of a government agency. The publication and indexing of decisions for the use of lawyers, courts and the general public in the form of legal opinions is essential to the development of jurisprudence. While all decisions constitute precedents (albeit at different levels of authority, as discussed in this article), some become “main cases” or “landmark decisions” that are cited particularly frequently. A precedent refers to a judicial decision that is considered an authority to decide subsequent cases involving identical or similar facts or similar legal issues. The precedents are included in the doctrine of stare decisis and require courts to apply the law equally to cases involving the same facts. Some judges have stated that precedents ensure that people in similar situations are treated equally, rather than on the basis of the personal opinions of a particular judge. Originalism is an approach to interpreting a legal text in which a dominant weight is given to the intention of the original authors (at least the intention derived by a modern judge). In contrast, a non-originalist examines other indications of meaning, including the current meaning of words, the pattern and trend of other judicial decisions, the changing context and improvement of scientific understanding, observation of practical results and “what works,” contemporary judicial norms, and stare decisis. Both are designed to interpret the text, not to change it – interpretation is the process of dissolving ambiguity and choosing among possible meanings, not changing the text. According to the literal rule, the judge should do what the law dictates, rather than trying to do what he thinks it means. The judge should use the ordinary simple meaning of the 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 in dictionaries in separate opinions. Another example is Fisher v. Bell, which concluded that a merchant who placed an illegal item with a price tag in a storefront did not make an offer to sell because of the specific meaning of “offer to sell” in contract law, but merely an invitation to be treated. Following that case, Parliament amended the statute in question in order to eliminate this discrepancy. Proponents of the primacy of precedent as a source of constitutional importance emphasize the legitimacy of decisions that respect the principles set out in previous and well-reasoned written opinions.13FootnoteBobbitt, op. cit. cit., note 2, p. 42.
They argue that compliance with the principle stare decisis14FootnoteStare decisis refers to the doctrine of case law, according to which a tribunal must follow previous judicial decisions when the same points recur in a dispute. Black`s Law Dictionary 1626 (10th edition 2014). and the adoption of decisions based on previous cases supports the Court`s role as a neutral, impartial and consistent decision-maker.15 See Gerhardt, op. cit. cit., note 4, pp. 70-71 (discussion of arguments in support of the use of precedents). The use of precedents in constitutional interpretation is intended to increase the predictability, consistency and stability of the law for judges, legislators, lawyers and political powers and institutions based on the decisions of the Court16FootnoteEpstein and Walker, op. cit.
cit., note 3, p. 29; Gerhardt, op. cit. cit., note 4, pp. 85-87. prevent the Court from setting aside all but the most misguided decisions,17Footnote Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. 723, 749-50 (1988); Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 585 (2001).
and allow constitutional norms to evolve slowly over time.18FootnoteGregory E. Maggs and Peter J. Smith, Constitutional Law: A Contemporary Approach 19 (3rd edition 2015). An out-of-court settlement does not result in a written decision and therefore has no precedential effect. As a practical effect, the U.S. Department of Justice settles many cases against the federal government simply to avoid negative precedents. Precedent is a legal principle created by a judicial decision that is an example or authority for judges who later decide similar matters. In general, decisions of higher courts (within a particular court system) are binding precedents for lower courts in that system. This means that the principle promulgated by a higher court must be followed in subsequent cases. The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a court that adheres to its own precedent. For example, if the Seventh District Court of Appeals were to comply with the decision in an earlier case of the Seventh District Court of Appeals, this would be a horizontal stare decisis.
A court engages in vertical stare decisis when applying the precedents of a higher court. For example, if the Court of Appeals for the Seventh Circuit followed an earlier U.S. decision. Supreme Court, it would be a rigid vertical decision. Or, further, if the United States District Court for the Southern District of New York were to uphold an earlier Second Circuit decision, it would be a vertical stare decisis. Lord Denning argued that, in most cases, the Court of Appeal (COA) was the de facto court of last resort, as few cases were ever heard by the UKSC. Lord Denning believed that the COA should enjoy the same freedom as the HOL could free itself from the constraints of binding precedents, for example Cassel & Co Ltd V Broome. However, the case was appealed to the HOL, where Lord Halisham took the opportunity to disapprove of Lord Denning`s approach. A precedent is a principle or rule established in a previous court case that is binding or persuasive, without the need to go to court for a court or other court when deciding subsequent cases involving similar questions or facts. [1] [2] [3] Common law systems place great importance on deciding cases according to consistent rules of principle so that similar facts lead to similar and predictable results, and adherence to precedent is the mechanism by which this objective is achieved. The principle that judges are bound by precedent is known as stare decisis (a Latin phrase with the literal meaning of “to stand in the things that have been decided”).