Padraic M

In the text Before the Law Karl Llewellyn defines precedent as “doing over again under similar circumstances substantially what has been done by him or his predecessor before”. This means that the court will generally rule with, or closely to other rulings in the past with similar circumstances. Precedent is used in the court of law to set standards and guidelines so the judges along with the defendants and everyone else involved has some idea of how the judge will rule case. There is then the views of strict and loose precedent which alter the way that the case will be looked at and used to argue the case. Precedent is a tool that is used in court by both sides of the law and can be interpreted in different ways.

The first view of precedent is the strict view; this view is that facts of the case are what were ruled on so that the case has no flexibility. With the strict view the prior cases cannot help future cases because the precedent was not what the court wanted to set but by some accident it happened anyway. Since the courts cannot turn back on the original decision the rulings are then made to follow the facts completely making the case useless and the precedent set not to affect anyone now. Llewellyn call this a “surgeon’s knife” because of the way that it removed the case and now keeps it from affecting future cases with unwanted precedent.

The second view of precedent is the loose view which is used more for change than the strict view. The loose view is a tool to help create new precedent by not following the old precedent strictly. It allows wiggle room in the ruling and interpretation of the precedent so it can help change and advance what had been set before. The loose view helps push the law forward and change rulings to go with the times.

Strict and loose precedent can be used in the same case so that the old precedents can be bypasses while the new precedents are established. This can be illustrated in the court case State v. Oliver, which took place in North Carolina in 1874. This case had a man beat his wife while drunk bruising her eyes and arms. The court ruled that the defendant guilty and ordered him to pay a fine of $10. This case was the first to really charge the husband with any wrongdoing in the cases in Before the Law that have been read so far.

While the court did not believe in beating of woman, it did believe that the home was a sanctuary and that what happens there should stay there. The courts in the cases that were read did not want to get involved with personal issues between husband and wife and generally ruled that way. This case, although the punishment seemed mild, seems like it changed the way that the courts could rule with issues dealing with domestic violence. Prior to this the courts had ruled to keep the home closed off from the court but this ruling opened up the possibility that the court would intervene in other such domestic violence cases. The court said the husband showed malice and cruelty towards his wife and then questioned how a man could treat his wife so after promising to lover her when he marries her which means that if he did not have malice and cruelty in his heart then there is no way he could have done something so vicious. This ruling gave the court the groundwork to look into domestic violence cases.

Unless otherwise stated, the content of this page is licensed under Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License