To illustrate this, assume that the word “possession” appears in a statute
making it an offence to possess prohibited drugs. If there is some dispute
about the meaning of “possession” counsel arguing the case are likely to cite
precedents. Some of these precedents may come from the use of the concept
of possession in other areas of law such as bailment or the tort of trespass to
goods. Almost inevitably these precedents will enlighten the court. But the
court is always able to say that there are special or different considerations
arising from the statute containing the term “possession” which could cause it
to adopt a different meaning from the meaning given to possession in these
other areas of law.
Because precedent is used so much as a major source of argument there are
research tools for lawyers (called statutory annotations) to help them find the
cases. Annotations alphabetically list all statutes in a jurisdiction, indicate
which provisions have been interpreted or considered in cases, state how the
provisions were interpreted and give the names and citations of the cases.
Precedent as Policy
Policy is the rational means by which law should be made and interpreted.
Given this, if there is place for precedent in this rational framework it is
necessary to examine whether and how precedent can be conceived as based
on policy. In fact this has been done in another text so a summary will suffice
here.
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Essentially the justification for precedent is that it is able to preserve a rule that
is made and based on sound policy. This, however, can be represented as
three specific functions of precedent:
(1)
Precedent preserves the rule itself.
(2)
Precedent preserves the policy underlying the rule.
(3)
Precedent avoids the costs that would be entailed in changing the
precedent (which of
course entails changing the policy that underlies the
precedent).
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These functions, however, are related. Preserving the rule preserves any policy
it implements. Continuing in this manner avoids the costs of changing from
one rule to another.
This, however, raises the question as to the basis on which a precedent can be
changed. Again, the answer rests on policy. The rule that now constitutes the
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Christopher Enright Legal Reasoning 23 Precedent
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For other accounts of the basis of the rules of precedent see Evans (1984A),
Evans (1984B), Evans (1984C), Peters (1996), Wesley-Smith (1991).
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