Society & law●●●●●Difficulty 4 of 5

Do judges have to follow what earlier judges decided?

In common law, yesterday's ruling binds today's judge, except when it does not, and the exceptions are where the real legal argument lives.

▶ Start the story

In common law systems, largely yes, but the rule is more flexible than it sounds. Precedent is a past judicial decision that serves as authority in later, similar cases. Under the principle of stare decisis, "to stand by things decided", past decisions guide future rulings, promoting consistency and predictability.

The binding part has layers. Vertical stare decisis binds lower courts to follow the decisions of higher courts in the same jurisdiction; horizontal stare decisis is the principle that a court adheres to its own previous rulings. And only part of an earlier opinion binds. Its ratio decidendi, the line of reasoning that forms the basis of the judgment, creates binding precedent, while obiter dicta, comments made in passing that were not necessary to resolve the case, may be cited as persuasive but do not bind.

Judges also have ways out. A court may "distinguish" a precedent, declining to apply it because the facts of the new case differ materially, or it may overrule it, when the same or a higher court finds its principles erroneous in law or overtaken by new legislation or developments.

What a later court can do with a precedent
  1. Step 1: Follow it

    Lower courts follow higher courts; a court adheres to its own rulings.

  2. Step 2: Distinguish it

    The new facts differ materially, so it is not applied.

  3. Step 3: Overrule it

    Its principles are found erroneous or overtaken by developments.

Not everyone lives under this regime. Civil law systems do not usually use stare decisis, since it would violate the principle that only the legislature may make law. They rely instead on jurisprudence constante: a consistent line of well-reasoned decisions is highly persuasive but not controlling.

Quiz me

0/3

  1. 1.What is the ratio decidendi of a case?
  2. 2.What does it mean to "distinguish" a precedent?
  3. 3.How do French lower courts treat decisions of the highest courts, despite there being no stare decisis rule?

Recap

A precedent binds through its reasoning, not its every word.

💡 A trick to remember it · A trail through a forest: most walkers follow it, but a guide can mark a new path when the old one leads nowhere.

Surprising fact · Brandeis wrote that it is often more important that the rule be settled than that it be settled right.

Sources (1)

No source, no claim. Every fact in this lesson (17 claims) cites at least one of these.

  1. [1]Precedent · Wikipedia
More lessons in ⚖️ Society & law (3) See all society & law lessons →

One more light on your map.

Get one lesson like this every day, about the things you love. Free, in two or five minutes.

Get the share card for this lesson ↗