The precedents of the plural form should not be confused with nominal primacy, which means the right to go before others. Originalists differ in the extent to which they bend to precedents. During his confirmation hearings, Justice Clarence Thomas responded to a question from Senator Strom Thurmond, relativizing his desire to change precedents in this way: law professors in common law traditions play a much less important role in the development of jurisprudence than professors in civil law traditions. Because court decisions in civil law traditions are short and not likely to set precedents, much of the interpretation of law in civil law traditions is done by academics rather than judges; this is called teaching and can be published in treatises or journals such as the Recueil Dalloz in France. Historically, common law courts have relied little on case law; it was therefore very rare at the turn of the century for an academic writer to be quoted in a legal decision (except perhaps for the academic writings of eminent judges such as Coke and Blackstone). Today, academic authors are often cited as a persuasive authority in legal arguments and decisions; Often, they are cited when judges attempt to implement arguments that other courts have not yet adopted, or when the judge feels that the academic`s reformulation of the law is more persuasive than is the case in previous ones. Common law systems thus adopt one of the approaches that have long been common in civil law systems. A precedent attaches a specific legal consequence to a detailed presentation of the facts in a case or judicial decision, which is then considered the rule for the decision of a subsequent case that has identical or similar essential facts and is presented before the same or a lower court in the judicial hierarchy. [25] Courts may choose to obey precedents of international jurisdiction, but this is not an application of the doctrine of stare decisis, as foreign judgments are not binding. Rather, a foreign judgment that is obeyed on the basis of the validity of its reasoning is called a persuasive authority – indicating that its effect is limited to the persuasive nature of the reasons it provides. Judges are bound by binding precedent law in England and Wales and other common law jurisdictions. This is a peculiarity of the English legal system.
In Scotland and many countries around the world, particularly in continental Europe, civil law means that judges look at case law in the same way, but are not obliged to do so and are obliged to take account of case law in principle. The decisions of their fellow judges may be persuasive, but they are not binding. In the English legal system, judges do not necessarily have the right to make their own decisions about the development or interpretation of the law. They may be bound by a decision taken in a previous case. Two facts are crucial in determining whether a precedent is binding: “A chilling precedent has been set,” she told the Observer last May. What words are often used to discuss precedents? In the judicial system, precedent always protects officials from the consequences of lethal force with qualified immunity. The golden rule is used when the use of the literal rule would obviously lead to an absurd result. There are two ways to apply the Golden Rule: a narrow method and a broad method.
Under the narrow method, the least absurd method is preferable when the wording of a statutory provision clearly has two contradictory meanings or the wording is ambiguous. In the broad method, the court modifies the literal meaning so as to avoid the absurd result. [45] An example of the latter approach is Adler v. George (1964). Under the Official Secrets Act 1920, it was a criminal offence to obstruct Her Majesty`s forces “in the vicinity” of a prohibited place. Adler argued that he was not near such a place, but had actually been there. The court decided not to read the text of the law word for word to avoid an otherwise absurd result, and Adler was convicted. [46] Precedents that must be applied or followed are called binding precedents (alternatively mandatory precedent, binding or binding authority, etc.). According to the doctrine of stare decisis, a lower court must take into account the legal findings of a higher court that is appealing cases heard by the court.