Precedent Flashcards
what is meant by ‘stare decisis’?
determining points in litigation according to a precedent
what are reasons for precedent following?
legal certainty
predictability
desire for just outcomes for similarity
highlight why decisions are distinct - ratio decidendi
how is the law developed?
distinguishing between precedent is how the common law is developed
binding precedents from higher courts
what is obiter dicta?
why can it be problematic?
form of persuasive authority that is not binding
similar weight to dissent, textbook extracts or legislative history
hard to distinguish the decision from the reasoning
what case saw the adoption of SC obiter dicta authority over CA precedent?
why?
Ivey v Genting 2017
because of authoritative status of SC, obiter can exist in the same realm as lower court precedent
what did the London Tramways 1898 case establish?
that HL could overrule their precedents
that SC/HLs precedents should only be overruled by Parliament
this was practice until 1966
what was the impact of the Practice Statement 1966?
what was the reasoning?
HL/SC could depart from precedent, if sticking to it would mean perpetuating a legal error, without the need of parliament
‘too rigid adherence’ to precedent restricts the ‘proper development of the law’
errors within the law seen by the courts in Derry v Peek and impacted the distinguishing in HB v H
how did Willers v Joyce articulate when the 1966 Practice Statement should be invoked?
if it is believed there is a genuine mistake in law that needs correcting
NOT because an opinion has shifted on a certain law
why is there caution when overruling precedents?
courts are wary that overruling precedents is retroactive law making
the aim of legislation is to be prospective - legislative role
don’t want to capture people within the law
ex// individual acting on the current precedent and then it changing
how is overruling precedent problematic?
those under previous, existing precedent loose out
what is the declaratory theory?
when judges overrule precedent, they are ‘correcting’ legal mistakes
declaring what the law has always been and that prev courts got it wrong
enforcing immemorial custom (pre-existing unwritten rules)
how does Blackstone describe the declaratory theory?
‘vindicating the common law’
not making new law
what is persuasive authority?
a decision or other pronouncement of law
ex// obiter dicta lower court decisions foreign court rulings academics textbooks
what are reasons as to why foreign precedent should not bind or even be used as persuasive authority?
do not apply to specific legal, cultural or political context
takes up time, money and resources - lawyers could suggest extensive foreign precedents
undermines sovereignty of the nation who has made the law
ranking of foreign precedents and thus foreign legal order
undermines rule of law - might lead to citizens being caught out
lawyers/ courts should take the litigants seriously and consider the specific case - not another case that happens to be similar
what are reasons for following foreign precedents as persuasive authority?
all courts work for the common purpose of justice
provides guidance for cases which the court has not yet experienced
helps to develop the court in making rulings
generates and alternative perspective
what is an example of the HL using foreign precedents as a persuasive authority?
Re Spectrum Plus 2005
considered experiences of other jurisdictions when deciding to endorse prospective overruling
what was Lord Goff’s perspective on following foreign precedents in Smith v Littlewoods?
‘our legal concepts may be different, and may cause us sometimes to diverge; but we have much to learn from each other in our common efforts to achieve justice’
what is meant by ius gentium?
where was the principle applied in the US?
internationally convergent precedent
Roper v Simmons - looked to other nations on standards of imposing inhumane and degrading treatment (death penalty for an under 18)
what should be the result of recognised difference in stance between nations, as recognised in Fairchild v Glenhaven?
‘must prompt anxious review’
what are arguments for stare decisis?
'’against?
saves time, logical procedure, provides certainty, equal application of justice
requires distinguishing/overruling, prospective overruling doesn’t provide current litigants with justice, retrospective overruling undermines the court, litigants may feel like their case has been dealt with impersonally
what are the different ways overruling can be understood?
declaring what the law has always been
removal of errors
recognition of judicial authority
depicting of the law in regard to judicial standards - ensure compatibility
how does Sir P. Sales describe the relationship between the judiciary and the legislature?
judges cooperate with the legislature
there is not an unstable power balance
judiciary trust that the legislature has enacted law purposefully
legislature trust that the judiciary will interpret it appropriately, follow precedent
when does Sir P. Sales argue law should not be applied by the judiciary?
‘when it becomes very clear that to do so would offend against prevailing conception of morality and social standards’
how does Sir P. Sales describe the common law system in relation to precedent?
‘distinctive mode of common law reasoning is analogical and causistic’
‘conformity to previous rules or justification of the new by means of old values’’
