Precedents and the Related Concepts

Case Review: Missouri v. Jenkins

Before we go deeper into the concept of precedent, let's look at the case of Missouri v. Jenkins (page 9 of your textbook). Recall we have said, "Law is a discipline within which one builds upon research and knowledge." Let's now apply it to the concept of precedent or stare decisis. When you read through the case, please consider the following questions:

• What was the issue in the case?
• Why were they in court?
• How did the court value the work of law clerks, paralegals, and recent law graduates in the Kansas City area?
• What is the difference among and between each of these legal classifications?

You can find these answers in your assigned readings.

Why Is Precedent or Stare Decisis So Important to the Legal System?

Precedent provides stability and continuity to the law. Thus, a legal system can be expected to be consistent and it is that consistency that will add to the speed in which law operates.  Likewise, if everyone knows the rules, then there is equity and equality, a concept from Anglo-Saxon jurisprudence (William the Conqueror brought it to England) carried to the Colonies by William Blackstone. Blackstone wrote one of the few legal textbooks that was the foundation for learning how to be a lawyer. Thus, an English concept was carried over to the practice of law in the United States. However, in England at the time of Blackstone, members of the monarchy were exempt from a number of the laws as well as precedent. Colonists moved toward equality using this legal concept and allowing no one to be exempt from a just process. Sometimes precedent is called case made law or judicial decision-making. Now judges may tweak the issues of the case but do so carefully and usually announce that the facts of the case need to be reviewed or that changes in society demand such a review. One example is the right to a lawyer at state expense and can be found in Gideon v. Wainwright (pages 105-107 of your textbook). We will discuss this later in lesson 5.

This leads to two other concepts within legal theories. Yes, there are more.

Sociological Jurisprudence and Historical Jurisprudence

Sociological Jurisprudence is the theory that the law changes in response to changes within society. Divorce, spitting on the street, medical marijuana, and domestic violence legislation are some examples. Usually this change in the law will take about ten to twenty years to occur.

Historical Jurisprudence is the theory that law is consistent through the ages. Marco Polo used laws in commerce and contracts that remain primarily unchanged. When you go to a hotel or a motel, the laws governing Inn Keepers has remained primarily unchanged for centuries. Here we are talking about 100 years or more.  If you are interested, read the Magna Carta at http://www.bl.uk/treasures/magnacarta/magna.html or the Justinian Code at http://ias.berkeley.edu/orias/summer2004/summer2004JustinianCode.htm.

Policy and Custom

Law continues to develop and refine what we in society do. Policy and custom are two important concepts when discussing law within society.

Policy usually means the implementation of a law or legal holding. Custom is the practice used in a jurisdiction by which those in the legal profession carry out their duties. Custom is not illegal or legal, as no challenges have been made in court on that determination. However, custom is an interpretation of how a policy may be carried out. For instance, in some jurisdictions, cases may only be filed on Wednesdays while other jurisdictions take the filings Monday through Friday. Thus, this is not a law but rather a custom of the court that is also referred to as the policy of that SPECIFIC court. Is it law—as in the statutes or the legal cases? NO!