THE CONCEPT OF PRECEDENT AND ITS SIGNIFICANCE IN THE CONSTITUTIONAL LAW OF THE UNITED STATES

Resumo

The concept of “precedent,” or “stare decisis,” is not only a distinctive feature of the Common Law tradition, it is, indeed, the most important element of that tradition. Any number of Common Law rules and practices could be – and have been – eliminated without altering the essential character of the tradition; but the Common Law so depends on precedent for both its coherence and its dynamism that, without precedent, the Common Law tradition would simply disappear. The purpose of the present article is to provide a picture of the theory and practice of precedent as utilized in the United States, giving particular attention to the significance of precedent in constitutional matters. It is hoped that this approach will be of interest to lawyers formed in the Civil Law tradition, many of whose countries have introduced rules of precedent into their own systems of constitutional adjudication.