Judicial Precedent Flashcards
Judicial Precedents(case law) (internet) Introduction
- Case law, also known as judge-made law, is the system under which the decision of a superior court is binding for the future on a court inferior to itself and sometimes binding on the court which gave the decision.
- For the effective operation of the system there must be a clearly defined hierarchy of courts and clear and accurate reports of judicial decisions. Of course, it is not the whole of the decision which contributes a precedent, but only the ratio decidendi of a case.
Precedent as a Source of Law in Mauritius (internet)
-In the light of Article 5 of the Code Napoléon to the effect that “ il est défendu aux juges de prononcer par voie de disposition générale et réglementaire sur les causes qui leur sont soumises”, one would be prompted to infer that judicial decisions cannot be a source of law in Mauritius, as is the position in France. This provision prohibits judges from adhering to a system of judicial precedent.
-Yet, the Supreme Court asserted in DPP v. Mootoocarpen (1988) MR 195 at 196 that:
-“It is quite clear that if a treatise were to be written on Mauritian Law, the sources of our law would not be limited to statue but would have to include case-law.
That Case-law (that is decisions of superior courts in Mauritius, viz. the Supreme Court and the Judicial Committee of the Privy Council) constitutes a source of law therefore calls for an explanation.
-This is the situation because section 2 of the Ordinance No. 2 of 1850, which established the Supreme Court, vested it with the same powers, authority, and jurisdiction that are possessed and exercised by Her Majesty’s Court of Queen’s Bench in England. Moreover, section 4 of that Ordinance, was to the effect that the Supreme Court and the judges thereof shall sit, and proceed to and conduct, and carry on, business in the same manner as the Court of Queen’s Bench and the judges thereof. At the Court of Queen’s Bench, as in other English Courts, there was adherence to a system of judicial precedent and stare decisis whereby decisions of higher courts were binding on lower courts and on themselves. These provisions of the 1850 Ordinance superseded the provisions of Article 5 of the Code Napoléon in so far as the latter purported to prohibit judicial precedent.
-Adherence to judicial precedent was eased as from 1861 with the regular publication of the Mauritius Reports (MR), which is a collection of the main decisions of the Supreme Court (S.C.J.: Supreme Court Judgments are published weekly). The initiative initially was a private one, that of a local attorney: Me Adrien Piston. From 1940 onwards, the Mauritius Reports have been an official publication and the editing entrusted to the Chief Justice.
-What is the relative importance of Case-law? Few areas are entirely governed by case-law (contempt, judicial review, a number of evidential and procedural rules). Even in those areas regulated by statue, judicial decisions do contribute to the law-making process by indicating which statutory provisions are applicable to a given situation and by indicating how a provision is to be interpreted (it clarifies, when various interpretations are possible, which one is a appropriate one).
INTRODUCTION
-Judicial Precedent can be explained simply explained as a practice of following the earlier decision of
laid down in court. According to this practice, a court must stand by what has earlier been decided in a case in court by a judge. This practice which has been in existence for a long time is known to be commonly practiced among the countries that practice common law system.
-Case law, also known as judge-made law. System under which the decision of a superior court is binding for the future on a court inferior to itself and sometimes binding on the court which gave the decision. For the effective operation of the system there must be a clearly defined hierarchy of courts
and clear and accurate reports of judicial decisions.
The case of DPP v Mootoocarpen (1998) MR 195 is the authoritative case which asserts the position of case law as a source of law in Mauritius. In that case, the Supreme Court affirmed that:
“It is quite clear that if a treatise were to be written on Mauritian law, the sources of our law would not be limited to statute but would have to include case law.”
-It is the ratio decidendi of a case which constitutes the binding precedent. A ratio decidendi refers to the legal principle upon which a decision is based. Judicial precedents as a source of law helps in the interpretation of statutes. Judicial precedents help in the interpretation of laws as well as indicate which provision of the law applies to a particular situation.
In some circumstances, courts in Mauritius do make reference to cases of other jurisdictions.
-Since some of the laws present in Mauritius are inspired from French or English law, a Mauritian court may have recourse to the decision of a French or English Court which previously interpreted the law. In the case of Queen v L’Etendry (1953) MR 15, the Supreme Court reasserted that when our law is borrowed from French law, we should resort for guidance as to its interpretation to French case law.
The doctrine of judicial precedent is to the effect that like cases must be treated alike. It is only the decisions of the Supreme Court of Mauritius and the Judicial Committee of the Privy Council that amount to a Case Law. Decisions of lower Courts such as the Intermediate Court and the District Courts do not
constitute a source of Law Some areas of the Law are completely governed by Case Law, for example the law of contempt and judicial review. Obiter Dicta is a term referring to a comment, illustration or thoughts made by the judge in the judgment, which is not necessary in reaching the decision. A later court may respect such statements, but it is not bound to follow them; they are only of persuasive authority.
