In the United States, in the late 20th and early 21st centuries, the concept of a U.S. court that takes into account foreign law or precedent was considered controversial by some parties. The Supreme Court is divided on this issue. This criticism is new, because the quotation of English authority was omnipresent in the early history of the United States. One of the first acts of many new state legislators was to incorporate English common law into state law. See here. Citing English cases was common in the 19th century and until the 20th century. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for U.S. state courts to rely on English decisions when it comes to pure (i.e. judicial) law. Stare decisis is generally not a doctrine used in civil law systems because it violates the legislative-positivist principle that only the legislature can legislate. Instead, the civil law system is based on the doctrine of consistent jurisprudence, according to which previous decisions are very convincing but not legally decisive if a court has decided a coherent line of cases that result in the same participations with sound reasoning. This doctrine is similar to stare decisis in that it requires that a court`s decision tolerate a consistent and predictable outcome.
Theoretically, lower courts are generally not bound by higher court precedents. In practice, the requirement of foreseeability means that lower courts generally submit to the precedent of higher courts. As a result, the precedent is recognized by courts of last instance such as the French Court of Cassation and the Council of State as de facto binding on lower courts. A judge`s usual tools include access to all previous cases where a precedent has been set and a good English dictionary. Precedent is a legal principle created by a judicial decision that is an example or authority for judges who later decide similar matters. In general, decisions of higher courts (within a particular court system) are binding precedents for lower courts in that system. This means that the principle promulgated by a higher court must be followed in subsequent cases. Long-standing habits, traditionally recognized by courts and judges, are the first type of precedent. Habit can be so deeply rooted in society as a whole that it becomes law. It is never necessary for a specific case to have been decided on the same or similar issues for a court to take note of customary or traditional precedents in its deliberations.
Initially, English common law did not have or require the doctrine of stare decisis for a number of legal and technological reasons: stare decisis reduces the number and scope of legal issues that the court must resolve in a dispute. It is therefore a time saver for judges and litigants. Once a court clarifies a particular point of law, it has set a precedent. Thanks to stare decisis, claims can be rejected quickly and efficiently, as disputes can be resolved using rules and principles that have been established previously. Stare decisis can therefore encourage parties to settle cases amicably, thereby increasing the efficiency of the judicial system. [30] The House of Lords, as the last court of appeal outside Scotland, before being replaced by the Supreme Court of the United Kingdom, was not strictly bound to always follow its own decisions until London Street Tramways v. London County Council [1898] AC 375. After that case, after the Lords had made a decision on a point of law, the case was closed unless Parliament made a legislative amendment. This is the strictest form of the doctrine of stare decisis (a doctrine not previously applied in common law countries where there was a little more flexibility for a court of last resort to consider its own precedents). Courts may consider decisions of other courts that have equivalent authority in the legal system. For example, a county appeals court may review a decision of another county`s appellate court.
Precedents are at the heart of analysis and legal decisions in common law countries, such as the United Kingdom and Canada (except Quebec). In some systems, precedents are not binding, but are taken into account by the courts. The second principle, convincing precedents, reflects the general precedents on which a court can base all its decisions. [5] The lower courts are bound by the jurisprudence of the superior courts in their region. For example, a federal district court that falls within the geographic boundaries of the Court of Appeals for the Third Circuit (the mid-level court of appeals against decisions of the District Courts of Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is bound by the judgments of the Court of the Third Circuit. but not by decisions of the Ninth District (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), because circuit courts of appeals are geographically regulated. Circuit courts of appeal can interpret the law as they wish, as long as there is no binding precedent from the Supreme Court. One of the most common reasons the Supreme Court grants certiorari (i.e., it agrees to hear a case) is when there is a dispute between district courts over the meaning of a federal law. In general, the higher courts do not exercise direct control over proceedings pending before the lower courts, as they cannot at any time, on their own initiative (sua sponte), appeal against the annulment or annulment of the decisions of the lower courts.