A GENERAL INTRODUCTION TO LEGAL PRECEDENT

The doctrine of precedent is fundamental to the common law system, and therefore to English law – the law of England and Wales. Other common law legal systems around the world, which have drawn their systems from English law, share an understanding of the need for a system of precedent as an inherent feature of the common law method, but their details are inevitably different, and this contribution will discuss only the doctrine of precedent as it has been developed and now applies within English law.

There are two separate aspects to precedent. In its most general form, the doctrine of precedent is based on the principle that judicial decisions (case law) are a source of law, operating alongside but independently from legislative sources of law. However, once it is accepted that case law constitutes a formal source of law, a second question arises: how binding is the judicial decision given by a court in any particular case? The answer to this second question will lead to the detail of the doctrine of precedent, and its role within the English legal system, which will be discussed in the following sections. A general discussion of the issues will first be given here.

1.1. CASE LAW AS A SOURCE OF LAW IN ENGLISH LAW

It is of the essence of a common law system, such as English law, that judicial decisions are accepted to be a source of law – not only historically, but also in the modern, living law.