Precedent System In Common Law: An Understanding Of Its Source And Flowing

The understanding of common law as a whole comes, to a great extent,from the observation to its precedent system. Regarded as the main threadlinking basic ideal and concrete system, precedent system, which has a history ofseveral centuries, is a judicial system with characteristics of its own. It is thequestioning of what on earth it is that surmounts the choice of how to treat thissystem in China at present. If the understanding to all problems is understood,and then the prerequisite of solving it, we can say that the door of theunderstanding of precedent system in common law that has just been opened,and there is still a long way to go. Regarding the forming of the common law asthe basic clue, the historical progress of the precedent system as ligament, thecondition of functioning of the precedent system as the basis, and theconstruction of precedent system, such as stare decesis or distinguishingtechnique as the core, this thesis attempts to carry on preliminary exploration tothe basic problem of the precedent system in common law. Theoretic tools, suchas semantic analysis, historical research, and positive analysis, can be recurred toreveal an institutional fact of precedent system in common law. The main bodyof this thesis consists three parts: The first article is about the question of basic linguistic context on theprecedent system. Defined the concept of the "common law" and meaning of "precedent",chapter one concerns the semantic analysis of "precedent" in common law. Theauthor considers that under the linguistic context of common law, precedentsystem is different from case law. As a system of the basic structure aboutprecedent, it doesn't include the substantial system of law about applying concreterules. Chapter two refers to the study on the lasting period of time of precedentsystem, that is, through the observation of the historical orbit of the birth ofcommon law, we can find the clue of the birth of precedent and the path ofitsdevelopment. The precedent system in the modern common law is a historicalaccumulation, and in England, it underwent Bracton era, Year Book era, private 203reports era, and modern reports era. Through the historical gradual progress ofmore than 7 centuries, it develops into a kind of relatively ripe legal system, and,accompanying the British colonist's fleets, blooms in most parts of the world. Tocarry out positive analysis, the author chose several different kinds of commonlaw countries. Thus the preliminary impression of precedent system can beelicited through what has been done. The middle article is about the basis of functioning of precedent system. The understanding of the legal questions, at least the researching methodsof it, should surmount law itself. If the understanding about the system of legalprecedent has broken away from practice of legal life and social life of thecommon law countries, it may cause a mistaken understanding. Proceeding fromlogic relations between legal system and other systems as well as specific culture,the author runs to study the basic conditions the precedent system needed fromsuch three angles as philosophy, politics and culture: From the point of view ofphilosophy, the precedent system embodies the philosophical view ofempiricism. Through the analysis of the dialectical relation between empiricismand rationalism, combining the mode of functioning to precedent system byphilosophical idea, the debating of reason and experience inhering in precedentsystem during the course of its functioning is laid out. In the modern commonlaw countries, especially in the United States, pragmatic philosophy has offereda dimension of explanation modernly, which makes us have furtherunderstanding about the development of precedent system. According topolitical basis of the precedent system, independent judicial systems still need tomaintain some kinds of other systems. On the politic...