- Created by: D.Knight
- Created on: 10-03-20 11:10
Judicial Precedent Revision Notes
What is the Doctrine of Judicial Precedent?
This is the legal principle that judges should use a previous case decision as an example to be followed.
Precedent is made when there is no primary, secondary, EU law on the specific matters in the case. Judicial precedent is the same as case law, judge-made law or common law. The English legal system is a common law system, meaning that much of the law has been developed over time by the courts.
3 Principles of judicial precedent
1. ‘Stare decisis’- This means ‘to stand by the decided’ and is the principle that lower courts follow the decisions of higher courts where the cases raise the same legal matters. The whole system of precedent in England is based on this principle. This ensures a just process and decision made.
2. ‘Ratio decidendi’- This is the reason for the decision and is the binding element of the precedent. It is the part of the decision which has to be followed by courts in the future and is the core of the decision made.
3. ‘Obiter Dicta’- This means ‘other things said’ and this element of the precedent is not binding. It is persuasive, in that it has influence in other cases. It has to be considered in future cases and can become the ratio decidendi in future cases. It can sometimes be a problem to divide the ratio decidendi from the obiter dicta in a judgement.
Types of Precedent
Binding Precedent- A precedent that has to be followed by judges in future cases. These are previous decisions of courts that are higher in the hierarchy, on the same subject. The binding element of a precedent is the ratio decidendi in a case judgement.
Persuasive Precedent- This is a previous decision or statement made in court that is not binding but has persuasive influence when decisions are made in future cases. It can come from 5 main sources:
• Decisions made by courts lower in the hierarchy- These decisions can influence courts higher. For example, in R v R the House of Lords agreed with and followed the same reasoning as the Court of Appeal.