LAW P1 ELS (judicial precedent) Flashcards
What principle is the docrtine of judicial precedent founded on?
The doctrine of judicial precedent is founded on the principle of ‘stare decisis’, meaning to stand by the decision.
What is ‘stare decisis’?
Stare decisis means to stand by the decision.
Essentially, it refers to the idea that once a court makes a decision, both they and other courts beneath them are bound by that decision, except for in certain circumstances.
What must there be for courts to use precedent?
In order for courts to use precedent set in previous cases, there must be an accurate written record of the decisions made in those cases.
The records are found in law reports, which come in a variety of forms.
What is the ratio decidendi?
In order to use precedents set out in the law reports, judges must be able to identify the ‘ratio decidendi’, which are the reasons for the decisions made in past cases.
What is obiter dicta?
Sometimes a judge may speculate on what the decision may have been if the situation were different.
This is known as obiter dicta which stands for ‘things said by the way’. Although this is not part of the case law, it may influence judges in later cases as persuasive precedent
What are the two types of precedent?
- binding precedent
- persuassive precedent
What is binding precedent?
Binding precedent is the idea that decisions made in courts must be followed by courts of the same or lower level.
What is persuassive precedent?
Persuasive precedent is where a court may choose to follow a previous decision, even if they do not have to.
A court may decide to apply comments made by a judge in a previous case, even though they did not form part of the ratio of that case.
What are the different methods to avoid following precedent?
- to have a past decision declared as mistaken (‘per incuriam’)
- to find significant differences between the previous case and the present one
- practice statement 1966 (only for supreme court)
What are the advantages of precedent?
- Certainty: The precedent system encourages consistency as like cases are decided alike, meaning that the system is predictable, and therefore people can plan ahead with reasoanble confidence that they are acting within the law
- Flexibility: Judges can distringuish cases on their facts (balfour / merrit)
- The practice statement allows the law to develop and adapt, this keeping up with modern times
- The precedent system has enabled whole areas of law to grow
- objectivity: the system of precedent prevents judges exercising personal prejudices, making the courts decisions more transparent and creating legal rules that are objectively acceptable
What are the disadvantages of precedent?
- Judges are drawn from a narrow social spectrum, meaning their views are less likely to be representative of those of the general public
- The system is rigid as the lower courts have to follow the decisions of higher courts
- Judgements can be long and unclear, so finding the ratio decidendi is not an easy task
- In seeking to avoid precedent judges may make distinctions which seem neither logical nor in like with the general rules that have been developed
