Judical Precedent Flashcards
What is the doctrine of precedent?
Judged following decisions of previous cases
What is Ratio decidendi?
Reason for the decision, the part of the decision which forms the precedent
What is obiter dicta?
Remainder of the judgement, things said by the way. Judges do not have to follow it.
What is original precedent?
If the point of law in the case has never been decided before, this forms an original precedent on the case.
What is binding precedent?
Precedent from an earlier case which must be followed
What is persuasive precedent?
Not binding, judge may consider it.
Give an example of persuasive precedent
Obiter statements
Judicial committee and privy council
Courts lower in hierarchy
Which court is the court of appeal bound by?
Supreme Court
Is the court of appeal bound by its previous decisions?
Yes
Give an advantage of judicial precedent
Certainty
Consistency& fairness
Flexibility (Supreme court can use practice statement to overrule)
Give a disadvantage of judicial precedent
Rigidity (lower courts have to follow higher courts)
Complexity (not easy to find relevant cases)
Illogical decisions
What is stare decisis?
“Stand by what is decided and do not unsettle the established”
What is disenting judgement?
A judgement given many a judge who disagrees with the reasoning of the majority of judges in the case
How can judges avoid precedent?
Distinguishing
Disapproving
Reversing
What is distinguishing?
A method of avoiding a previous decision because facts in the present case are different
