Judicial precedent part 1 Flashcards
What is judicial precedent?
When the facts of a case are similar to a previous case, the judge must follow the earlier decision.
What is judicial precedent also known as?
Stare decisis
Common law
Case law
What does stare decisis mean in English?
To stand by things decided.
What does ratio decidendi mean in English?
Reason for deciding.
What is one fact about ratio decidendi?
It’s the legal principle or reasoning behind a court’s decision in a case.
What is another fact about ratio decidendi?
It is a binding precedent for later cases which are similar.
What is an original precedent?
When a judge creates a new, binding rule in the absence of existing law, often reasoning by analogy to similar cases.
What is a binding precedent?
A decision made by a higher court that lower courts must follow in future cases.
What is a persuasive precedent?
A decision that is not binding but may be followed by a judge.
What types of persuasive precedent are there?
Decisions from lower courts
Privy council decisions
Obiter dicta
Dissenting judgements
What does obiter dicta mean in English?
Other things said.
What is obiter dicta?
Extra comments made by a judge that are not essential to the decision and are not legally binding.
What is a dissenting judgement?
When a judge disagrees with the majority decision and explains why, influencing future cases but not changing the outcome.
What are the 3 ways of avoiding precedent?
Overruling
Reversing
Distinguishing
What is overruling?
When a higher court decides that a previous decision was wrong and changes it.
What is an example of overruling?
In Pepper v Hart, the previous decision in Davis v Johnson was overruled.
What is reversing?
When a higher court changes the decision of a lower court following an appeal, overturning the original judgement.
What is an example of reversing?
Fitzpatrick v Social Housing Association Ltd
What is distinguishing?
When a court decides that a previous case doesn’t apply because the facts are different.
What is an example of distinguishing?
Balfour v Balfour and Merritt v Merritt
