Unit 1 | Judicial Precedent (AQA)

Judicial precedent..

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  • Created on: 26-04-12 13:29
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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 referred to as judicial
creativity.
If the judge is applying a legal rule established from a previous case, the decision is called
declaratory precedent.
If the judge is deciding to make a new legal rule, this is known as an original precedent.
When a higher court requires a lower court to follow its previous decision, this is called a binding
precedent.
In situations where judges are able to choose whether to follow a previous precedent / decision, this
is called a persuasive precedent.
How precedent works
There are several factors which need to be present in order for precedent to work:
1. The hierarchy of the courts
2. The ratio decidendi
3. A system of law reporting

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Hierarchy of the courts…read more

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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 the obiter dicter (other things said).…read more

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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 Society.
There are specialised law reports including family law reports, human rights law reports etc.
The media sometimes print law reports, particularly the Times, Guardian and the Independent.…read more

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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 a lower court.
Reversing is the same case on appeal whereas overruling is a different case (N.B.…read more

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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, duties and chance of success without the expense of going to court.…read more

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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 ­ Judges may be forced to make decisions that they disagree with in order to follow
precedent. This is especially true of the lower courts where it is difficult to avoid precedent.…read more

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