Precedent : Law, Ideology, and Legitimacy

When taking a look at an ideological aspect of temporary Canadian criminal Law I came across that of Precedent cases. Precedent is a principle or rule that has been established in previous cases, that are binding or can be considered persuasive on the case at hand. What makes a case binding or persuasive is the fact that the case at hand has similar facts as the previous case. “Decisions on lower courts are not binding on higher courts, although from time to time a higher court will adopt a reasoning and conclusion of a lower court.” (www.lectlaw.com) The purpose of precedent cases in the legal system is that it allows for predictability, and fairness in cases, to make sure that there is a balance in past and present cases, although the precedent can be overruled and overturned by higher courts, as well as amended. An example of a precedent case was R. v Feeney (1997) in which “Supreme Court of Canada overturned Michael Feeney’s conviction for second degree murder on the basis that the police had unlawfully entered his home without a warrant, and obtained evidence from hi without informing him of his rights.” (www.chartercases.com) (R. v. Feeney, 1997, 2. S.C.R.) This case is an example of where evidence obtained was excluded and that judicial authorization is require for the police to enter a private home and forcibly make an arrest, this was later used in R. V. Landry.

This ideology can be seen as symbolic function in the context that it serves to perpetuate certain ideas and take into account the way society function, so as to follow the right procedures, as well as being a coercive a function to regulate behavior and punish people, but only when it is fair to do so. The ideology of Precedent cases takes into account that there is a procedure, consistency, and reliability and that even those in power and authority must follow this. Precedent is a ideology because of the fact that it permits society to function, and law to be fair, if not for precedent many alike cases would be judged differently putting the system of law into disrepute. This ideology does not favor to elite, or those in authority but is set in place so that the circumstances of the case in the past and at hand can be both judged in the same context, without bias or personal gain. “Specifically then, ideology is associated with ideas about how legitimately to rule and resolve conflict within, and so to preserve capitalist societies.” (Pavlich, 2011, p.96). The fact that binding precedent is used to stabilize the law is another example of it being an ideological aspect of contemporary Canadian Criminal Law, specifically linked to that of Justice and keeping that justice maintained. In the context of Justice one the 3 aspects of law as ideology, many acquittals were based on violations of legal procedure, although this can be considered a hardship, it also again sets a precedent of what can and cannot be allowed to happen in court, so as to prevent rights being infringed upon.

When we take a look at the official version of law, and see that although Marx rejects it, he does see the purpose of it we also see that like precedent the official version of law see’s to it that government actions must be in accordance with the law. This means that judges cannot make up decisions with repercussions, the laws and rules have to be, “consistent with decisions being based on application of legal rules to facts and the observation of precedent.” (Larsen, 2014). We can also take a look at Superstructure of Society (Marx) and relate that to Precedent, in the context that the superstructure is everything not included with production; which includes its culture, institutions, political power structures, and ideologies. Overall the ideology of Precedent keeps intact much more then justice, it allows for those in power positions to not use their roles in society to take power over those who are facing the legal system. The fact that this ideology has been being used for years, again goes to prove that it is something that works now and will work in the future.

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One response to “Precedent : Law, Ideology, and Legitimacy

  1. I am not sure that I understand how you are associating the concept of ideology with the concept of legal precedent. Could you elaborate on the relationship between precedent, predictability, and the Official Version of Law (as ideology)? I think that your analysis is *almost* there, and it just needs a bit of development.