binding precedent

Definition of binding precedent

Further reading

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In civil law and pluralist systems precedent is not binding but case law is taken into account by the courts.

Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy.

There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. 'A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'.

Binding precedent in English law

Judges are bound by the law of binding precedents in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges' decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:

1. The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
2. Whether the facts of the current case come within in the scope the principle of law in previous decisions.

Advantages and disadvantages

There are advantages and disadvantages of binding precedent. The advantages include: certainty, consistency, preciseness, and time-saving. The disadvantages include: rigidity, complexity, illogical reasoning (the differences between some cases may be very small and appear illogical), and slow to grow (some areas of the law are unclear or in need of reform).