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Judicial Precedent
Definitions ­

Precedent is where judges are guided by decisions from earlier cases. Sometimes it is referred to as
treating like cases alike (or stare decisis ­ standing by the decisions of previous judges).

Sometimes judges will be making new law if a new situation arises. This is…

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Hierarchy of the courts

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The ratio decidendi
This means `the reason for the decision'.

Judges don't always make the ratio decidendi clear. It may be up to later judges or lawyers to
identify it. The ratio decidendi must be the legal principle which applied to decide the case. It
must be distinguished from…

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Law reports
Law reports are records of the decisions made by superior courts and are crucial so that the ratio
decidendi and obiter dicter can be established and a precedent can be made.

From 1870, official law reports were published by the Inns of Court and by the Law…

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Avoiding precedent
Judges may prefer to avoid precedent if it may lead to injustice.

Overruling ­ A higher court can overrule the decision of a lower court if it considers the decision to
be wrong (see hierarchy of courts for examples).

A higher court can also reverse the decision of…

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Advantages of precedent
Consistency ­ Judges following precedent should ensure that consistent decisions are made which
should lead to greater justice (as opposed to arbitrary decisions)

Certainty ­ This means that it is possible to predict the likely outcome of a case; so a claimant can find
out the rights,…

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Disadvantages of precedent
Undemocratic ­ Precedent encourages judicial law making. As judges are unelected, they are not
accountable to the public. Therefore critics argue that they are going beyond their powers in creating
law when they should be interpreting and applying law which has been created by Parliament.

Rigidity ­…

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