Law Unit 2

CHAPTER 1

JUDICIAL PRECEDENT

The Doctrine of Precedent

The English system of precedent is based on the Latin maxin "stare decsis" This means stand by what has been decided and do not unsettle the established. This supports the idea of fariness and provides certainty in the law.

Judgements

Precedent can only operate if the legal reasons for past decision are known, so at the end of a case there will be a judgement. This is a speech made by the judge hearing the case giving the decision. In a judgement the judge usually gives a summary of the facts of the case, reviews the arguments put to him by the advocates in the case, and then explains the principles of law he is using to come to the decision. These principles are the important part of the judgement and are known as the "ratio decidendi" which means "the reason for deciding". This us what creates a precedent for judges to follow in future cases. The rest of the judgement is known as the "obiter dicta" which means "other things said".

There can be more than one speech at the end of the case depending on the number of judges hearing the case eg in the Court of Appeal and the House of Lords cases are heard by at least two judges up to a maximum of seven, therefore there can be more than one judgement. In cases where there is a particularly important or complicated point of law, more than one judge may want to explain his legal reasoning. This can cause problems in later cases as each judge may have had different reason for his decision, so there will be more than one "ratio decidendi"

Ratio Decidendi

Ratio decidendi is the only part of the judgement that forms a precedent. It can be difficult to seperate the ratio from the obiter as they are usually in a continuous speech. This means that the person reading the judgement will have to decide what the ratio is.

Obiter Dicta

The remainder of the judgement is the obiter dicta. Judges in the future do not have to follow it. It is a persuasive precedent as it may presuade the judge hearing the case.

Original Precedent

If the point of law in a case has never been decided before, then whatever the judge decides will form a new precedent for future cases. It is an orginal precedent. As there are no previous cases for the judge to look at, he will look at a case that is closest in principle and he may decide to use similar rules. This way of arriving at a judgement is called reasoning by anology.

Binding Precedent

A binding precedent is a precedent from an earlier case that must be followed even if the judge in the later case does not agree. A binding precedent is only created when the facts of the second case are sufficently similar to the original case and the decision was made by a court that is…