The Doctrine of Precedent

Fundamentals of Procedural Law by Adam J. McKee

The Doctrine of Precedent, often referred to as “stare decisis,” which is Latin for “to stand by things decided,” is a fundamental principle in the legal system. It means that judges are generally required to follow the decisions made in previous similar cases, known as precedents. This principle promotes consistency, predictability, and fairness in the law.

A precedent is set when a court, especially an appellate court, decides a case and provides an explanation for the decision, known as an “opinion.” This opinion is then used as a guide for future similar cases. The concept of precedent is closely linked to common law, the system of law derived from court decisions, as opposed to statutes enacted by legislatures.

Distinguishing Between Binding and Persuasive Precedents

In the realm of precedent, there are two crucial terms: “binding precedent” and “persuasive precedent.” A binding precedent, also known as mandatory precedent, is a previous court decision that a court must follow. This type of precedent comes from a higher court in the same jurisdiction and is directly applicable to the case at hand.

On the other hand, a persuasive precedent is a decision from another jurisdiction or a lower court that the judge may consider but is not obliged to follow. Judges often look to persuasive precedents when there’s no binding precedent or when they’re considering deviating from an existing precedent. These precedents can provide useful insights and reasoning, even though they don’t have the binding force of law.

Overturning Precedent

Although the Doctrine of Precedent encourages courts to follow past decisions, there are instances when a court may decide to overturn or depart from a precedent. This is typically reserved for situations when a precedent is deemed outdated or no longer relevant due to societal changes or when a previous decision is recognized as wrongly decided.

It’s important to note that the power to overturn a precedent is not taken lightly. Such a decision can only be made by the same court or a higher court that set the precedent. Overturning precedent can lead to significant legal changes, and as such, it requires a substantial justification.


The Doctrine of Precedent, or stare decisis, is a bedrock principle in the legal system, requiring judges to follow decisions made in previous similar cases. These precedents, established through court opinions, contribute to the consistency and predictability of the law. Precedents can be binding, which courts must follow, or persuasive, which courts may consider. While the Doctrine of Precedent encourages adherence to past decisions, there are instances when courts may decide to overturn a precedent. This significant step, leading to substantial legal changes, is not taken lightly and requires substantial justification.

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File Created:  08/07/2018

Last Modified:  07/05/2023

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