In the legal systems of Common Law, Unlike Law School Civil law which is based primarily on written codes and laws, the previous Play a role in fundamental in judicial decision-making. A precedent is a rule or principle legal established in a /// previous one that serves as a guide for solve similar cases in the future.
How does precedent work?
El principle of precedent is based on the idea that similar cases should have similar results. This is achieved through the mechanism of "stare decisis", a Latin phrase meaning "to stand by one's decisions." Essentially, "stare decisis" requires judges to respect precedents established by previous judicial decisions, especially those of higher courts.
Precedent as a source right:
The precedent in the Common Law is considered a source right, just like written laws (statutory) and regulations (regulatory). Previous judicial decisions, especially from higher courts, create rules and principles that judges must follow in later cases.
Types of precedents:
- Binding: A precedent is binding when the Tribunal which establishes it has authority hierarchical over the Tribunal that should apply it. In this ///, the judge is obliged to follow precedent.
- Persuasive: A precedent is persuasive when it comes from a Tribunal Of the same hierarchy or a Tribunal of other jurisdiction. In this ///, the judge may take into account account the precedent, but it is not obliged to follow him.
Importance of precedent:
- Consistency and predictability: Precedent promotes consistency and predictability in the application of the right, which generates legal certainty.
- Evolution of right: Let the right gradually evolve through judicial decisions, adapting to new ones circumstances social.
- Justice e footing: Help a to guarantee that similar cases are treated in the same way, promoting the Justice and footing to the law.
"Setting a precedent":
When a /// judicial treats a novel topic or establishes a new interpretation of the law, it is said that "precedent-setting." These decisions become a benchmark for similar future cases.
