Definition
PRECEDENTS carries two distinct legal meanings that are related in spirit but differ sharply in practice.
1. Judicial precedents. Prior court decisions on points of law that are cited, followed, or sanctioned in subsequent cases. A judicial precedent is not merely any decided case — it is a decision regarded as authoritative or instructive, carrying weight that ranges from persuasive to binding depending on the relationship between the courts involved and the doctrine of stare decisis. The ratio decidendi of the earlier case — the legal principle necessary to the decision — is what functions as precedent; obiter dicta do not bind, though they may influence.
2. Drafting precedents (forms). Written instruments, pleadings, or other legal documents that have been previously used and approved, serving as models or templates for subsequent documents of the same type. A forms precedent gives practitioners a tested structure from which to draft contracts, conveyances, pleadings, and similar instruments.
Both meanings share a common core: legal acts or instruments deemed worthy to serve as rules or models for future cases.
---
Common Language
Modern common usage (Wiktionary): Plural of precedent — something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same or an analogous kind.
Historical common usage (Webster's 1913): Something done or established before; a preceding circumstance or requirement. Also, in common speech, a previous example or instance serving as a model.
The common-language meaning tracks closely enough to the legal meaning that the gap is narrow but worth noting. In everyday use, "setting a precedent" suggests any first instance that others might follow. In law, the term carries a structural and hierarchical dimension that the common usage omits: not all prior decisions constitute binding precedents, and whether a given decision functions as precedent depends on which court decided it, which court is now considering it, and whether the facts and legal question are sufficiently analogous. The drafting-forms meaning is invisible in ordinary speech entirely.
---
Common Confusion
Precedent (singular adjective) versus precedents (plural noun). In contract and property law, the word "precedent" frequently appears as an adjective — most prominently in "condition precedent" — meaning a condition that must be satisfied before an obligation arises. This is a wholly separate usage from judicial or drafting precedents. Researchers searching historical sources should be alert to context: a treatise entry on "precedents" may address case authority, drafting forms, or conditions, and conflating these produces research error.
Binding versus persuasive precedent. Historical sources often use "precedents" to mean any cited authority, without clearly distinguishing binding authority from persuasive authority. The modern distinction — that a court is obligated to follow binding precedent but only has discretion to consider persuasive precedent — is more rigorously observed in contemporary doctrine than in the older literature.
---
Recognized Forms
/SUBTYPES
1. Binding (mandatory) precedents. Decisions of a superior court within the same jurisdiction that a lower court is obligated to follow under the doctrine of stare decisis.
2. Persuasive precedents. Decisions from other jurisdictions, lower courts, dissenting opinions, or other authorities that a court may consider but is not required to follow.
3. Equity precedents. Precedents arising in courts of equity, recognized as governing in equitable proceedings. Burrill notes this expressly — equity courts acknowledged their own body of precedential authority parallel to the common law.
4. Drafting/forms precedents. Approved written models for instruments, pleadings, and proceedings, used by practitioners as templates for new documents.
---
Why It Matters in Research
Historical sources use "precedents" expansively. Bouvier and Burrill both apply the term to judicial decisions and to drafting forms without always distinguishing between them. A researcher in the Law Mind corpus encountering a chapter or treatise section titled "Precedents" should check whether the author means a collection of approved form documents or a discussion of case authority — these are different research problems.
The weight of precedent was contested in early American legal thought. Bouvier quotes Lord Mansfield for the proposition that reason and spirit make law, not the letter of particular precedents — a position that sits in tension with strict stare decisis. Bouvier's own taxonomy of precedents (organized roughly by whether they arise from the court of last resort, from general equitable principles, or fall somewhere in between) reflects the unsettled state of the doctrine in the formative period of American law. Researchers should not assume that eighteenth or early nineteenth-century sources treat precedent as categorically binding in the way modern doctrine does.
Stare decisis is the doctrine that gives judicial precedents their operative force. These are related but not identical concepts: precedents are the decisions themselves, while stare decisis is the rule that obligates courts to follow them. The historical dictionaries treat the two interchangeably at times, which can obscure the doctrinal structure for researchers working in early sources.
Equity distinguished. The equitable body of precedents developed separately from common law case authority. Story's Equity Jurisprudence, cited by Burrill, addresses equity precedents as a recognized category. Researchers working in chancery or equity contexts should treat equity precedents as having their own internal logic and hierarchy, not simply as a subset of common law authority.
Drafting forms precedents. In practice-oriented historical treatises and form books, "precedents" almost always means approved instruments — not judicial decisions. This usage was standard in conveyancing and pleading manuals through at least the late nineteenth century. A researcher who encounters a "book of precedents" in the corpus is most likely looking at a forms collection, not a digest of case law.
---
Historical Dictionary Support
Bouvier and Burrill agree on the dual character of the term. Bouvier describes precedents as "legal acts or instruments which are deemed worthy to serve as rules or models for subsequent cases," explicitly noting the political and legislative extension of the word, and separately addressing the judicial use. Burrill adds the drafting-forms meaning directly: "written forms of proceedings which have been approved," linking both senses in a single entry.
Both dictionaries situate the term in relation to stare decisis. Burrill cross-references "Stare decisis" and Kent's Commentaries. Bouvier invokes the same authorities, adds Story, and cites the Mansfield dictum warning against mechanical reliance on particular precedents at the expense of reason. The older commentators — Kent, Story, Livermore — are the primary authorities both dictionaries reach for, and researchers should treat those treatises as the foundational secondary literature for understanding how the term operated in American practice before modern doctrine fully crystallized.
What the historical dictionaries understate is the hierarchical dimension of binding versus persuasive authority. Neither Bouvier nor Burrill systematically distinguishes between precedents a court must follow and those it merely may consider. The emergence of a formal, jurisdiction-specific hierarchy of binding authority is a development that modern doctrine has refined beyond what these sources describe.
---
Jurisdictional Note
The operative force of judicial precedents varies by jurisdiction. Federal courts and courts within a given state are bound by decisions of their respective courts of last resort; decisions from other jurisdictions are at most persuasive. Civil law jurisdictions — Louisiana being the prominent domestic example — do not recognize stare decisis in the common law sense, making the concept of binding judicial precedents largely inapplicable to their legal framework.
---
Encyclopedia Cross-Reference
Contracts & Commercial Law Encyclopedia — Interpretation: Conditions (Express, Implied, Constructive; Precedent, Concurrent, Subsequent): For the condition-precedent usage of the term, which appears in contract interpretation and is distinct from the judicial-authority meaning.
Contracts & Commercial Law Encyclopedia — Interpretation: Exceptions to the Parol Evidence Rule (Fraud, Mistake, Condition Precedent): For the intersection of condition precedent with parol evidence doctrine, particularly relevant to contract research.
---