ABSTRACT
This chapter addresses a variety of theoretical and comparative issues relating to judicial departures from precedent under code, under statute, or under mere common law, but not under constitutions. A departure from precedent may or may not be overt. Explicit overruling is the most overt type of departure. Departures that are not overt but merely implicit may occur in trial courts, in intermediate appellate courts and in the highest courts. Overt forms of departure in all systems include decisions in which courts explicitly overrule, explicitly modify or explicitly 'whittle away' a precedent. Professors of law and other academics in universities and in research institutes can play major roles in the working of a system of precedent within their country. The following justifying grounds for departures from precedent play especially important roles in the upper courts of civil law countries in fields covered by code or statute.
