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- 1 History of Precedent
- 2 This article needs fixing
- 3 Categories
- 4 Citing judicial precedent is not a fallacious "appeal to authority"
- 5 Merge from case law
- 6 Legal Latin term identifying a decision as one that should not be held as precedent?
- 7 Custom and case law are not precedents
- 8 Merge with "stare decisis?"
- 9 "rule of law" means "question of law" or "point of law"?
- 10 When there is no precedent, what is there, really?
History of Precedent
I would appreciate a historical analysis of precedent from the time of it's inception onward. I assume precedent comes from Roman times, but I am woefully uninformed on this subject. What is the precedent of precedent? —Preceding unsigned comment added by 188.8.131.52 (talk) 22:51, 31 March 2011 (UTC)
This article needs fixing
I've redirected Binding authority and Persuasive authority to this article, but I'm thinking twice about it. This is not a particularly enlightening piece. I'm contemplating rewriting... Mmmbeer 22:27, 19 July 2005 (UTC)
Why is this included in the category "Logical fallacies"? --Eastlaw 05:56, 22 May 2006 (UTC)
- Probably because an argument from precedent is a logical fallacy. mmmbeerT / C / ? 10:38, 23 May 2006 (UTC)
Dear fellow editors: I agree, this article needs work.
I argue that the reference to reliance on "precedent" as a logical fallacy (appeal to authority) is misplaced in the context of legal precedent. In English common law systems (e.g., in England, USA, Canada, etc.), the rule of precedent (specifically, judicial precedent) basically says that if a prior court decision is on "all fours" (or very close to "all fours") with the issues and facts presented in a current case, the court in the current case should follow the holding of the prior case (assuming certain other legal points not relevant to this discussion). This is a rule of law in English common law systems, not a method of determining the "truth" or "falsity" of something. It's a part of the English system of legal rules itself. The key point is that we're not following the holding of the prior case because it's "correct" or "true." We're simply applying a rule of the legal system.
Let's compare this to the fallacy of "improper appeal to authority." If we want to determine what a particular constitutional provision, statute, reg, or court case says, we read the actual text thereof. For example, suppose someone asks, "Hey, what's your authority or rationale for saying that all persons born or naturalized in the United States are citizens of the United States?" We respond by pulling out a copy of the U.S. Constitution and reading the Fourteenth Amendment -- which says just that. (I'm assuming that we have an actual verbatim copy of the text.) It's not a question of saying that we are making an improper, fallacious "appeal to authority" here. And it's not a question of saying that the statement is "true" merely because authority says it's true. If you want to know what the law is, you read the law.
In law, the actual text of the statute or, in the case of a court decision, the holding, etc., IS the law. When we cite a statute or court decision, we are not "appealing to authority" in the same sense that we are doing so when we say "the Earth revolves around the Sun because Copernicus says so." Whether Copernicus is right or wrong about the facts, whether Copernicus says so does not DETERMINE the ontological correctness of the statement that the Earth revolves around the Sun.
However, in the case of law, if we contend that the statute says such and such a thing, a direct, exact quotation from the statute itself IS CONCLUSIVE (again, assuming arguendo that our copy of the statute is an actual, verbatim print of the statute, etc.). Similarly, citing legal precedent (or, more specifically, judicial precedent) is "more correct" in a fundamental sense in determining "what the law is" than appealing to Copernicus for a "determination" of whether the Earth goes around the Sun.
Now, in medieval times they might have had a "rule of law" that whatever the Church said about how the universe operated was "the law" (i.e., secular law). But in medieval times, what the Church (the Authority) said about the universe -- whether correct or not -- still did not change or affect in an actual, ontological sense, the laws of physics or the nature of the universe. In this way, appealing to the Church as the ultimate authority on determining whether the Earth revolved around the Sun (or vice versa) would have been fallacious, in a way that citing precedent in the English common law system is NOT fallacious.
Of course, problems such as (1) determining what the judicial precedent really is -- how broadly or narrowly to frame the holding of the prior case, and (2) whether the facts of the prior case really are close enough to our facts, and (3) whether the prior case has been overruled, reversed, limited, etc., are separate, complex issues.
The real confusion that results in incorrectly thinking that the use of legal precedent is somehow "fallacious" actually involves a fallacy of a different sort -- the fallacy of "whole word equivocation." In talking about legal precedent (whether judicial or administrative) we are using the term "precedent" in a technical legal sense. In talking about "precedent" in the context of a fallacious appeal to authority, I argue that we are using "precedent" in a slightly different way. We are improperly trying to "make equal" two different senses of the same word ("precedent") that are not really "equal."
I think you can reasonably argue back and forth about whether the English common law system -- including the rule of judicial precedent -- is a good or bad system, or whether the underlying policy considerations that resulted in the creation of the rule of precedent and the incorporation of that rule into the English system were good or bad policies. For example, maybe we should abolish the system of precedents because .... whatever. But those are separate concepts.
Any thoughts, anyone? Yours, Famspear 21:57, 23 May 2006 (UTC)
PS: I do not mean to imply that simply quoting from any passage of text of a court opinion establishes the holding of the case, the precedent for which that case stands. For fellow lawyers, my explanation assumes with respect to citations to precedent, that you have "correctly" distilled the holding of the cited case, etc. For the majority of readers -- who are not lawyers -- what this means is that court cases are a bit different from statutes and regulations. Most of what is written in the text of a court opinion is not necessarily the "precedent," the "rule" for which that case stands. I am simply saying that in the context of citing precedent (whatever that happens to be for a particular case), the citation to the precedent is not a "logical fallacy" -- it's the proper method of analysis in an English common law system. Yours, Famspear 22:11, 23 May 2006 (UTC)
It is now three and a half months later, and no one else has commented on this. I have therefore deleted the language from the article. Yours, Famspear 23:19, 7 September 2006 (UTC)
- Famspear is correct. The law and religion are the two areas of human activity where something true because a specific person with authority to say so said so. When a majority of the Supreme Court says the law is such-and-so, well, that's the law. And the only reason it is the law is because a majority of the Supreme Court said so.
That's the defintion of a "common law" system.
Now things are different in civil law systems, but I don't understand that enough to opine.
Merge from case law
I will shortly propose that the article case law be merged with this one because the terms have nearly identical meanings and their respective articles are almost completely redundant. Precedent refers either to the precedential effect of a single case or the aggregate of all cases with respect to a given legal question. Case law is the same thing but usually refers to all of a legal system's precedent in aggregate. Sure, case law has a nuance that focuses on the case itself whereas precedent refers to its effect. However, the difference is slight and doesn't really justify two different articles.
Alas, neither article is very good. This one is written in better English and is as a whole more accurate, but misses the point. The other one is full of awkward language and inaccuracies, and has no section headers. Neither has any citations. Combining the two can't make things any worse, and might encourage someone to actually clean things up. This is an important and worthy subject, and I think we can do better. Wikidemo 22:24, 13 August 2007 (UTC)
Text from "opinion"
I gutted the discussion of case law from the opinion article and made it refer here because it too is redundant. Here is some language I removed that might be salvageable for use here:
- Cases decided by a country's Supreme Court, for example, sometimes become well-known because they express the court's "opinion" on how law is to be interpreted, which can have very wide implications. This usage of the word opinion is different from the common usage (outside the legal field), because the court's opinion is not the opinion of any person, but the court's decision after careful deliberation of the case, and is binding on relevant future cases in lower courts. When a multi-member court is less than unanimous, the majority opinion states the outcome of the case and the reasoning behind the court's decision. Other judges or justices on the court may write opinions concurring with or dissenting from the majority opinion.
-- Wikidemo 22:24, 13 August 2007 (UTC)
Legal Latin term identifying a decision as one that should not be held as precedent?
Judges can write in a decision that they don't wish for it to be used as precedent in case law. E.g., I have read that Bush v. Gore is such a case. Whether subsequent interpreters of case law will honor that wish, and whether judges should or do have the authority to specify this, I don't know (IANAL). My question is, is there a "legal Latin" term for this? I could swear that I've seen such a term before, but I can't think of any googling terms that lead me back to it. I keep thinking ad hoc ("to this", i.e., "regarding only the current instance"). But I'm not sure if ad hoc is really used that way as a term of art in law (because IANAL). Can any lawyer answer that? — ¾-10 16:47, 28 May 2008 (UTC)
Custom and case law are not precedents
I just took a quick look over here while considering suggestions for the Caselaw page and I cringed when I saw the last two listings for types of precedent. As to each:
- Custom is a source of law recognized within states that follow the civil law tradition. Custom is not a civil law tradtion version of case law, it is a completely separate source of law. Private custom, particularly within industries and professions, has also been considered by common law tradition courts (or at least courts in the USA, but I believe other common law states as well) for the purpose of determing what acts can be considered negligent. That use by the common law courts is a factual determination, not a legal one. But most important, though published cases using or recognizing custom may be precedent, the custom they recognize is not. Or, at least, no more so than the 13th Amendment of the Constitution of the USA is precedent because cases use it to rule that slavery is illegal.
- Case law is the body of precedents that a court may rely upon. It's the entire body of applicable precedent, whether to a single jurisdiction or group of jurisdictions.
Merge with "stare decisis?"
The article on "stare decisis" is quite good (though it could use some work).
Would it make sense to merge the good material from this "precedent" article into the "stare decisis" article, and redirect?
"rule of law" means "question of law" or "point of law"?
In the intro paragraph, when referring to a "rule of law", does that mean a "question of law" or "point of law"? This is an important facet of this whole thing, isn't it? That stare decisis is a legal precedent that binds a lower court to rulings on points of law, i.e. interpretations of law, by superior courts (not just any superior court, either, but a directly superior court)? If so, it should be wikilinked to that article whenever possible. Int21h (talk) 19:03, 27 July 2012 (UTC)
- "Question of law" is something different -- is it decided by a judge (question of law0 or decided by a jury (question of fact). I agree with your latter observation, that "linked whenever possible" is a good practice, when the term is not an everyday one known to everyone. Boundlessly (talk) 03:08, 28 October 2012 (UTC)
When there is no precedent, what is there, really?
So I was editing some articles related to the Judiciary of Russia, and I was wondering what actually happens in those judicial systems that do not use precedent as we WASPs know it, like Russia, Germany, France, etc. There are other factors to be considered, facts that I am not sure, before Wikipedia (hell, even before I edited those articles, really), people really knew about. Like the fact that unlike the US Supreme Court, these European courts are not the same people from day-to-day or case-to-case; that is, a "court" does not decide a case, a "chamber" does. (And, of course, the thing everyone neglects to mention is that a chamber is a small subset of the court, and no one on Wikipedia knows how the subset is chosen.) So, given:
- each case may be decided by completely different people, even within the same session ("chambers")
- they don't have to follow previous decisions (no precedent)
- its well known different people make different decisions in systems with precedent (eg the different US Supreme Courts, which are not bound by their own precedent)
what makes this "jurisprudence constante" in practice? I mean, especially if theres a chance you could appeal and get a completely different Supreme Court than yesterday -- or tomorrow? Are we English, American, Canadian, Australian, New Zealander, and Irish Wikipedians the only ones who know how our laws are interpreted and will be interpreted? I mean, hell, we have precedent and there are still thousands upon thousands of academic literature bodies debating what the law is -- after the Supreme Court just said what it was! Int21h (talk) 01:34, 22 December 2012 (UTC)