The Doctrine of precedent Traditional law comes into being when specific guidelines and standards for behavior are traditionally used in a particular society and are tested as binding.
If a regular pattern of behavior is not observed, for example, going to the movies on a Saturday evening, then it is no more than a habit. This is not traditional law.
Traditionally, laws are used between judges and other legal decision-makers.
It is customary to separate the law of a case made by a judge from the traditional law as a “precedent as a source of law”. One of the points of this section is that the difference is not always very sharp. The traditional nature of customary law is partly due to the fact that legal decision-makers follow the practice of enforcing these laws.
Traditional laws may come into being or be ratified if they are actually used in legal decision-making.
An example would be:
One farmer sells cows to another farmer. The cow gets sick and dies in a few weeks. The other farmer wants his money back. The seller refused to return the money, saying the buyer should have paid more attention to his purchase. If he did, he would probably know that the cow was sick. The case comes before a judge, who agrees with the seller:
the buyer should have been more careful because if the animal had been carefully examined, the disease of the cow would have been detected.
In future cases, there is no need to go to a judge about the sale of an unhealthy animal if careful inspection of the animal is found. In such cases, no money will be refunded from the seller to the buyer. The judge’s decision will serve as a binding precedent for future cases. Furthermore, after a while, the rule that a disease discovered in a cow does not constitute a reason to request a refund of the sale price will be treated as customary law.
legal precedent example
Court decisions can serve as precedent government definition and will often do so. There are two ways to explain this. The first interpretation is that the judge’s decision is evidence of the law that existed before the judge’s decision. If this principle already exists, then it is clear that the same principle should apply to future judges and other judges.
The second interpretation is that the judge while delivering his judgment, made a new rule which did not yet exist but will remain in force from the time of judgment. It is also understandable in this interpretation that other judges will have to apply this principle in future cases. This is the second interpretation, that the decisions of the courts, instead of merely stating, make the law, which has become the norm in the twentieth century.
In the early centuries, the idea was that court decisions were merely evidence of pre-existing law. Blackstone, a well-known English lawyer of the 18th century, wrote: “[…] The judgments of the courts are proof of what common law is.” (Emphasis added.)
The second interpretation is confirmed in the theory of stark judgment (Latin word for “standing by one’s decisions”). According to this view, if a court has decided a case in a particular way, then the same court and the lower courts will have to give the same decision in future cases which are the same.
In 1966, the Supreme Court of England, the House of Lords (since 2009: the Supreme Court, and to distinguish itself from the political “House of Lords”) declared that it would no longer consider itself bound by its previous decisions. With this announcement, he made an exception for the principle of starting judgment for himself.
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The practice of adjudicating cases with similarities to previous cases and the principle of starting together means that the common law is based on precedents and case law. English legal reasoning has therefore become a form of case-based reasoning, looking for similarities and differences between new cases and old cases that have been decided.
Although legislation also plays a role in English law, the emphasis is traditionally on general law, which consists of a large body of cases. However, it can be argued that this focus on litigation rather than legislation has lost its significance now that the UK has become a member of the European Union, and the laws of the European member states are intertwined.
The tradition of common law
The English legal tradition has been passed on to members of the British Commonwealth. As a result, it is not only England that is a common law country but also Ireland, Wales, most of the US states, Canada, Australia, and other countries. The common law of all these countries is based on the old precedents, which are based on the time when these countries were part of the British Empire, but since these countries became independent, the difference between them has increased.
Nevertheless, the paradigms in the various common law countries play some role in the common law tradition in other countries. In this sense, common law is a major legal tradition, standing side by side with the civil law tradition of continental Europe.