Please provide some information about the principle of precedent binding in common law.

It is basically the tradition of empiricism in Britain and America and the sacred complex of judges. The following is taken from gongfa.com.

Common law system refers to a kind of legal system of countries and regions based on English common law, among which the common law system is the most representative. The common law system is also called Anglo-American law system, English law system, maritime law system and case law system. The formation and development of common law system is the formation and development of case law tradition.

The first section of the unique way of English law

There is a saying in the western proverb that "all roads lead to Rome". Apart from China, Rome was once the center of the ancient world. Roman law not only prevailed in the ancient world for more than 1000 years, but also became the foundation of modern civil law system (including China's modern legal system). However, English law in the Middle Ages embarked on the road of development independent of the European continent. With the rise of Britain, English common law is unique in the whole legal history of the world, and has developed to this day with tenacious traditional strength, forming a worldwide common law system with case law as the main legal form.

First, the formation and development of English law

The aborigines in Britain are Celts. In BC 1 century, the Roman Empire conquered this place and ruled it for four centuries, but only a few coastal cities were controlled by Rome, and the Celts in other areas still kept their own clan system. (1) In the 5th and 6th centuries, Germanic peoples migrated to the territory of the Roman Empire. The Anglo-Saxons living near the Elbe River in North Germany and the Jutes living near the Rhine River successively invaded Britain and established several tribal countries. The Anglo-Saxons brought their own Germanic customary law. Even if there are some written laws, they are all records of customary law. Generally speaking, laws are scattered and vary from place to place. By the 9th century AD, the kingdom of Wessex had recruited several tribal countries by force, and formed a unified kingdom of England on the British Island, but the dispersed state of laws remained unchanged. 1066, the great feudal Lord of France, Duke William of Normandy, led the Normans to conquer England. Norman invasion completed the process of feudalism in England. At that time, the British legal system was very chaotic. The king established a royal court by decree and sent judges to various places for trial. In handling cases, circuit judges mainly rely on the common law of Anglo-Saxons in various places, in addition to the king's letters and decrees. After the circuit trial, the judges regularly discuss and debate some cases and legal viewpoints around Westminster, where the central organ is located, and integrate the customs and laws on which they are based in the future circuit trial and apply them. Circuit judges interpret and apply the customary laws of various places according to the king's will when trying cases, and gradually form a common customary law in the whole country, which is called common law. (2) This customary law was announced by the judge through the judgment, which exists in the judgment, and its form of expression is precedent. /kloc-In the late 20th century, Henry II carried out judicial reform, stipulating that some of the most serious criminal cases should be accepted by the royal court: knights, citizens and free peasants were allowed to file lawsuits directly with the royal court without going through the Lord's court; The original circuit trial was determined as the judicial system; Establish jury system, cancel duel, trial by god, etc. Henry II's reform established the status of common law. The characteristics of common law include: (1) The basic content of common law is traditional customary rules, which are gradually enriched and developed in long-term practice. (2) The rules of common law are recognized by ordinary courts and are the basis for ordinary courts to decide cases. (3) Common law is gradually developed by ordinary courts through judicature, and ordinary courts play an important and positive role in the elimination, abolition and development of common law rules in judicial activities. (4) The rules of common law are embodied by precedents. When making a judgment, the judge sorts out and selects the rules of common law, and then expresses them accurately. (1) Since14th century, British economy has developed rapidly. At this time, the basic principles of common law have been stereotyped and systematized, thus showing conservatism. Many cases were rejected by ordinary courts or given unfair judgments. In order to provide legal relief to these parties, the king authorized the Chief Justice to act as the "protector of the king's conscience" to try cases. Judges judge cases according to the principles of "fairness, justice" or "justice", and gradually form a legal system, which is called justice. Equity mainly adopts some principles of Roman law, church law and commercial law to make up for the deficiency of common law, but its manifestation is also precedent. Parliament was established in Britain in the13rd century. 15- 16 century later, with the gradual improvement of the status of Congress, the legislative activities of Congress are increasingly frequent, and the number of laws enacted is increasing. In addition, church law also influenced the development of English law through the trial activities of church courts and the infiltration of church law principles into common law. Since17th century, British politics has become increasingly corrupt, and the Catholic Church has been used to suppress the people, which has aroused the bourgeois revolution. From 1640 to 1688, the bourgeoisie fought fiercely with the king with the Congress as its position. After the civil war, the execution of Charles I (1625- 1649), Cromwell's dictatorship (1653- 1658), the restoration of the dynasty and the compromise of 1688, Britain established a constitutional monarchy. The capitalist legal system has gradually taken shape. However, the legal form is still the common fear, equity and statute law in feudal period, while the legal content gradually transits to the capitalist nature through judicial interpretation or new legislation.

From 65438 to the 1960s, Britain began the industrial revolution and the capitalist economy developed rapidly. Bentham is a famous British jurist who actively responded to the codification movement in Europe. He published The Theory of Government in 1776 and The General Theory of Morality and Legislation in 1789. He used the utilitarian standard to measure the British laws at that time, accused the British laws of being ancient, imperfect and conservative, advocated reforming English laws through legislation, and tried his best to create codification. 1832, the British parliament promulgated the reform law, and began to remove the medieval remnants in various legal fields on a large scale, which promoted the further development of the bourgeois legal system. Bentham's influence lasted from19th century to today, which led to the partial formulation of English case law. However, the strong vitality of British case law hinders the realization of the overall codification of case law. Since the end of 19, with the strengthening of state intervention in social and economic life, the number of written laws has increased sharply, which has lowered the status of case law, but case law is still the basis of English law.

Second, the reasons why English law is independent of Roman law.

/kloc-from the 0 th century to the 5 th century, the Roman army conquered and occupied Britain, but the conflict between the local Celts and ethnic groups limited the penetration of Roman law. During the revival of Roman law in continental Europe, the influence of Roman law entered Britain, and the equity law and commercial law that rose in Britain in the16th century absorbed Roman law to varying degrees. However, the influence of Roman law on Britain occurred on the basis of common law, which was not enough to change the direction of independent development of English law. At that time, Britain did not "accept" Roman law like western European countries, mainly because there were important differences between Britain and western European countries in historical background.

First of all, unlike the countries in the western European continent that have been in a state of feudal separatism for a long time, Britain has established a centralized monarchy since the Norman conquest, and the common law, which is uniformly applied throughout the country, appeared almost at the same time as the national royal court, Jintong Court. The existence of a self-contained common law makes Britain not as eager to "accept" Roman law as western European countries. Judges in ordinary courts grew up under the influence of the common law peculiar to Britain. In the16th century, although the common law itself tends to be conservative, the judges of these ordinary courts naturally formed a social force. Because of their vested interests and traditional beliefs, they stubbornly adhere to the common law tradition. The current status of common law and the conservative thinking of ordinary court judges make it too late and weak when the wave of Roman law revival tries to cross the English Channel, a natural barrier between Britain and Europe. /kloc-Hertmann, a French Roman jurist in the 6th century, was hired as a legal adviser to the king of England and gave lectures in Britain. He argued with British jurist Kirk for more than 30 years. As a result, the common law gained great prestige, but Roman law was repeatedly frustrated in England. (1) Therefore, when the separatist regimes in western Europe successively "accepted" Roman law, Britain could still maintain its own legal tradition.

Secondly, in the17th century, common law became a powerful weapon in the hands of parliamentary political parties. Because ordinary cowardice has formed some toughness in the long-term historical development, its cumbersome and formalistic technology enables it to stubbornly resist the oppression from the royal power. From then on, the British regarded the common law as the guarantee of basic freedom, and used it to protect civil rights and fight against the tyranny of autocratic power. Some principles of common law have become an important part of British unwritten constitution. "When the judges of ordinary courts gradually tend to oppose the parliamentary boundary of the king of England, the exclusiveness of the traditional power of English law becomes stronger. Third, the courts in western European countries, generally speaking, have jurisdiction over all litigation from the beginning, and are not limited by writs and litigation forms, so it is easier to accept Roman law. However, for a long time, the common law courts in Britain have handled special cases except local court cases, and at the same time, each type of case has its own special proceedings, which hinders Britain's "acceptance" of Roman law. In the future, after the common law court actually develops into a court with general jurisdiction, its mechanical and complicated procedures are still a serious obstacle today.

Section 2 English Common Law Tradition

First, the traditional characteristics of English common law

English common law is a law created and developed by the judges of English ordinary courts in the Middle Ages through judicial precedents. The tradition of common law is manifested in following the principle of precedent, the dominant position of case law, case law method and litigation relief centralism.

Common law is a law created and developed by judges through judicial precedent, which means that common law is related to judicial precedent as a precedent. -A precedent in a general sense refers to a previous example that can be used as an example or rule of a later event or case, or a previous example that can be used to support or prove a similar situation or behavior. The research results of human behavior show that all ethnic groups have a tendency to respect or even infatuate with their own traditions. Therefore, it is natural that people in a particular society often refer to previous solutions when dealing with problems. At the same time, all ethnic groups have a natural tendency to respect and worship authority. Therefore, when dealing with similar situations, it is natural that ordinary people tend to follow a more authoritative approach. These two behavioral tendencies are similar in judicature. Judges will refer to previous judicial decisions when handling cases, and lower courts will often follow the judicial decisions of higher courts. It can be said that the judicial trials of all countries and nationalities are influenced by judicial precedents to varying degrees.

The judicial precedent in Britain is a kind of directly binding law, that is to say, judges should not only refer to and follow the judicial precedent, but also must follow it; Precedent is not only a model of demonstration, but also a binding precedent for later cases. This is the so-called "follow precedent" rule in Britain. ②

In Britain, (1) the judgment of the House of Lords is a binding precedent, which all other courts must abide by, and it is also binding on the House of Lords itself. (2) The judgment of the Court of Appeal is a binding precedent for all courts except the House of Lords, including itself; (3) The judgments made by the High Court are binding on the county courts, and are usually recognized by different branches of the High Court for their wisdom and integrity, which is why they should attach great importance to their judgments. "(2) the British legal person-generally opposed to any attempt to compile, they either think that the time is not yet ripe, or think that the compilation process is too rigid, which will inevitably hinder the spirit and experience of English common law to grow together. Today, the proportion of written law in Britain has greatly increased, and its practical role has also greatly improved. However, these changes cannot shake the basic position of case law, and the innate love for case law still lies in people's profound legal concepts and the profound legal culture in Britain. Case law method is the natural evolution of the rule of "following precedent". The case law method is that judges sum up legal principles from cases involving the same facts and apply them to later cases as skillfully as possible. " English law is a written case law, and the only difference between it and code law is that it is written differently. The rule of "following precedent" leads to a series of skills of applying case law. "British jurists should distinguish the necessary basis of judgment, that is, the' decisive reason' of judgment and the' incidental opinion', that is, what the judge said is not absolutely necessary for judgment. "Reasons for making a decision" constitutes a precedent norm and should be observed in the future. On the other hand, the content of "incidental opinion" is not authoritative, but its value is only persuasive ... "(4) This" decisive reason "and" incidental opinion "are intertwined with the specific facts of the case, forming the unique legal thinking mode of British judges and jurists. They are used to handling cases through the analysis and comparison of specific facts, and to summarizing and abstracting from specific facts and laws through inductive reasoning. Main, a famous British jurist, once said that English law "seeps through the cracks of procedure". It can be said that English common law came into being as a set of effective methods to solve various disputes, and it pursues litigation relief centralism. In Britain, the rights of substantive law are always viewed from the existence of judicial relief, and the priority of procedure is respected. Any trial result obtained according to clear and fair procedures must be regarded as a fair conclusion. The ordinary courts in medieval England tried cases according to the king's writ, and decided the way of litigation and the method of judicial relief. Without judicial relief, there is no right. In order to supplement the shortcomings of ordinary courts, the court of equity came into being and gave judicial relief according to the specific circumstances of the case. However, if there is no judicial remedy in the equity court, those who seek help in the equity court without judicial remedy in the ordinary court still have no right. Although this litigation method was abolished in the19th century, due to this historical tradition, until now, jurists in the common law system still look at the rights of substantive law from the perspective of judicial relief. " The principle that procedure takes precedence over rights has always been one of the foundations of English common law.

Second, the vitality of English common law

Common law has a history. The common law is a legal norm accumulated by British court cases for hundreds of years since 1 1 century. The repeated application of precedents, constant reasoning and self-proof in history have made the common law have a strong vitality. The common law has some detachment, which is praised by western scholars as "the natural expression of human perfect rationality". "In the eyes of the British, the concept that law is reason has led to a kind of supranational or, more accurately, non-national awareness of conforming to traditional laws." (1) The concept of distinguishing law from law in common law makes the common law itself have a natural charm similar to "natural law". Common law is open. On the one hand, an inherent principle of common law is to implement it in the so-called "colonial areas". With the expansion of British imperial power in the world, common law has been introduced to many places in America, Asia, Africa and Australia, thus forming a worldwide common law system. On the other hand, although English common law is fictionalized as fixed and rooted in medieval English practices, it is not static. In fact, it is constantly evolving according to the policy needs and values of British society. "The common law is also unified." The term common law is usually used without labels. People don't want to regard common law as a national legal system; This is "the common heritage of English-speaking countries". As a common heritage, it is required to play the role of Roman law in continental Europe until the era of codification. "The common law was originally a unified common law that medieval England tried to promote in the whole UK in order to unify British judicial power. The development of the common law and the formation of the common law system made the common law develop into a unified law in all English-speaking countries. In the common law system, the precedents of English courts are considered to be the most authentic common law, and they are often applied first. In addition, "the courts of different countries and regions in the common law system often refer to each other and cite the case law of other countries in the common law system, and English common law is the factor connecting the legal systems of these different countries." "The unity of the common law is reflected in the traditional characteristics of the common law, that is, the characteristics of the common law application field, including following precedent rules, case law methods and litigation centralism.

The unity of the common law is also manifested in that the basic principles of the common law belong to the application field of the common law, including: (1) everything that is not expressly stipulated in the law is allowed; (2) Anyone whose interests are harmed by the judgment should be given a fair trial; (3) In civil law, the injured person should be compensated. The legal relationship adjusted by common law involves many aspects of public law and private law. The above-mentioned basic principles of common law ensure that the specific system of common law tends to be consistent in various fields of common law application.

The existence of the Commonwealth has played a very important role in strengthening the ties between common law countries and maintaining the unity of common law. Among the more than 30 member countries of the Commonwealth, the vast majority belong to the common law system, accounting for the vast majority in the whole common law system. Since the establishment of 193 1 Commonwealth, the appeal to the Privy Council of England has been cancelled in the trial procedure, but some countries still retain this practice. Although the judgments of the British House of Lords and the High Court are no longer as binding as before in the courts of Commonwealth member countries, they are still convincing.

The compilation of English cases, that is, the compilation of cases, is a report on court cases written by a third party, and there is a relationship between it and the binding force of cases. The development of English jurisprudence has experienced the almanac era in the middle ages, the private journalist era in the16 ~19th century and the real jurisprudence era since the late19th century. 1863, a special committee composed of 22 people was set up in Britain to reform the case compilation, and a "case compilation committee" with legal personality was set up, which was composed of representatives of lawyers' associations, lawyers' councils and law schools. Starting from 1865, under the name "without the approval of the British case compilation Committee, the case compilation of any court shall not be published", the chaotic situation of the publication and distribution of case compilation was changed. By the beginning of the 20th century, the number of cases collected had reached 65,438+0,800 volumes, and it was increasing at an annual rate of 65,438+00 volumes. Jurisprudence sets are those judgments that are new precedents. In principle, 75% of the judgments of the House of Lords, 25% of the judgments of the Court of Appeal and 65,438+00% of the judgments of the High Court should be published. In fact, unpublished court decisions are no longer bound by precedents. Section 3 American Inheritance of British Law

/kloc-At the beginning of the 7th century, the United States began its colonial period. At that time, there was little contact between the colonies, and Britain's control over them was relatively loose. At that time, colonial residents urgently needed laws in real life, and in view of the complexity and conservatism of English common law, there were many difficulties in inheriting it. Therefore, the laws enacted by most colonies have the minimum necessary rules, and English law is only the secondary legal source to fill its defects. /kloc-After the 0/8th century, with the strengthening of British colonial rule and the increase of people familiar with English law in colonies, the influence of English law in North American colonies increased significantly. /kloc-in the middle of the 0 th/8 th century, the independence movement broke out in the United States, and Americans fought with British common law as a weapon. The declaration of rights and the complaint letter of 1774 are documents that openly advocate the rights of Americans in the common law. With the independence of the United States, American law has become the law of an independent country. After many twists and turns, the common law tradition was finally established in the19th century.

Until the middle of19th century, there appeared two obvious tendencies of English common law and codification in the United States. /kloc-In the mid-9th century, the heated debate about codification in New York focused on the conflict between English law and continental law tradition. At that time, the New York State Constitution stipulated that a "written and systematic code" should be drafted. As a representative of the school of Codex Chemistry, lawyers' field insists on codification, believing that codes can make laws fixed, certain and predictable, and opposes judges becoming legislators like Britain. Carter, president of the American Bar Association, took the lead in opposing codification. He believes that the rules that regulate people's behavior come from habits, and the precedent only shows the public's recognition of social habits, so the judge only found the law instead of legislation. On the contrary, codification will hinder the development of law. The struggle between these two tendencies ended in the tradition of universal fear-the acquisition of political parties, and the United States as a whole established the tradition of universal fear (except Louisiana).

Although both Britain and the United States take case law as the main source of law, the United States is not as dominant as Britain in case law. Britain is the birthplace of common law case law. It has long adhered to the tradition of case law, and the dominant position of case law has never been strongly impacted by statute law. Although the United States was based on case law, it showed a tendency to pay more attention to written law than Britain in the early days of the founding of the People's Republic of China, and there was a tendency for European codes or regulations to replace case law in the later development. Since the end of 19, the written law of the United States has far exceeded that of the United Kingdom, and its role has become more and more important. Although the United States has completely inherited the common law tradition of Britain, its attitude towards case law is not exactly the same as that of Britain. In the United States, although the lower courts in a certain jurisdiction think that they should be bound by the precedent of the higher court or the Supreme Court, the state supreme courts and the federal supreme court have adopted a more flexible attitude than the British courts, thinking that judges can deviate from or overturn the precedent. Even the intermediate court of appeal in the United States mostly exercises such power. They boldly overthrew inappropriate precedents, mainly because of insufficient reasons, misunderstanding of previous court decisions and inconsistency with newly established social ethics. At the same time, judges at all levels of courts generally have extensive powers and can ignore binding precedents.

For the application of the principle of following precedent, Britain generally believes that the reasons for judgment can be formed by the principle of making it clear under formal legal procedures, or distinguishing the judge's incidental opinions in the judgment opinions, and the reasons for judgment should exist in a relatively narrow form, that is, they should not exceed the exact topics and the substantive facts of the case; The United States, on the other hand, believes that the judgment reason must be the substantive reason of the previous judgment, and disagrees with the proposition that the judgment reason can only exist in a relatively narrow form. British judges are used to synthesizing many precedents related to this case when considering judgments or interpreting statutory provisions, thus forming a comprehensive judgment reason; American judges sometimes consider their own judgments directly from the substantive reasons that can only be established after listing several authoritative cases. There are few objections in the judgments of British courts, and there are many cases in which objections or minority opinions are expressed in the judgments of American courts.

In Britain, there is a unified and strict court system, and the lower courts have the obligation to respect the higher courts, which provides a good condition for "following precedent", which is the most important factor for the stability, unity and survival of British case law. Therefore, Britain naturally gives the House of Lords and the Court of Appeal, which enjoy the highest judicial authority, the exception of "following precedent" to ensure the stable operation of British case law.

However, in the United States, federal and state courts have their own systems. The federal court system includes the Federal Supreme Court, the Federal Court of Appeal and the Federal District Court. The court system in each state is quite complex, which can be roughly divided into three categories: the state supreme court, the state court of appeal and the state district court. The dual-track system of the court system makes the case law in the United States extremely complicated. Because there is no strict and unified hierarchy among courts in different systems, the strict rule of "following precedent" cannot be implemented, and courts at all levels may overturn or shelve precedents.

According to this situation, if there is no strict regulation, American case law will lose its living conditions. But in fact, American judges basically follow precedents. The United States has wisely borrowed the advantages of codification and used a written constitution to limit the exception of "following precedent". In other words, whether it is a judge of the federal court or a judge of the state court, the judgment that deviates from the "precedent" must be based on the Constitution. If it violates the Constitution, it will be revoked by the Federal Supreme Court. In addition, the Federal Supreme Court also has the power to interpret the Constitution, which establishes the authority of the Federal Supreme Court to supervise the lower courts to "follow precedent", which makes case law play a different role in the United States than in Britain. Comparatively speaking, British case law is stable, but easy to become rigid; The case law of the United States is not as stable as that of Britain, but it is quite flexible and adapts to the changes of criminal society.