Precedent forms the basis of the common law. This is one of the sources of law in Scotland. The judiciary may, on occasion, determine the meaning of a term in a piece of legislation and they also create law through precedent. There are areas of law, such as delict, where little legislation exists. When legislation does not exist, courts have to make a decision on the facts before them and look at previous decisions to determine the case. In this way they have developed an area of law known as common law.
There are two notions of precedent. Firstly is that it is dynamic, the rule in a previous case can be applied in subsequent similar cases. This allows the common law to evolve incrementally in order to cover newer factual situations and changing social circumstances and norms that have some resemblance to, or roots in, the first case. Secondly, is that it is a static mechanism to ensure certainty, so far as possible, in the law.
The static doctrine of binding precedent is known as the doctrine of stare decisis, which is Latin meaning ‘to stand by/adhere to decided cases’, i.e. to follow precedent. In other words, once a legal principle is decided in one case it should be followed in similar future cases. The doctrine of binding precedent refers to the fact that, within the hierarchical structure of the courts in Scotland, the decision of a higher court will be binding on a lower court. In general terms, this means that when judges try cases they will check to see if a similar situation has come before a court previously.
If a precedent from a similar situation exists and it was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the legal principle established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it.
There are three essential elements to this system of precedent:
- a court hierarchy
- binding precedent
- accurate law reporting.
You should now watch the following video which explores precedent.
Transcript: Exploring precedent
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