Precedent

Question 1

Which are the 3 conditions necessary for the operation of a system of precedent?

Answer 1

1 recording of prior decisions,
2 hierarchy of courts
3 general acceptance that values like equality, predictability, public confidence, consistency and certainty are preferred to flexibility and individual justice.

Question 2

What’s the ratio decidendi?

Answer 2

The ratio decidendi is the core legal reasoning of a case and it is only the ratio of the case that is binding on future courts.
Definition of ratio: Considine v. Shannon Regional Fisheries Board, [1994] 1 I.L.R.M. 499. he selection of a ratio from a case is an interpretative choice, and the ratio of a case is often not clear until a subsequent court determines what is the binding legal principle contained within it: e.g. Donoghue v. Stevenson, [1932] A.C. 562

Question 3

What is an obiter dictum?

Answer 3

An obiter dictum usually concerns a peripheral or irrelevant (for the purposes of the instant case) legal principle. They are not binding but are of highly persuasive value.

Question 4

It concerns a peripheral or irrelevant (for the purposes of the instant case) legal principle:

Answer 4

Obiter dictum

Question 5

Which type of judgements are not binding but just persuasive?

Answer 5

Dissenting judgements, foreign courts judgements, judgements by an inferior court

Question 6

When is an analogy made?

Answer 6

analogy is made when a court determines that the reasoning and principle applied in the precedent should be applied to the case before it whether due to the similarity of the facts raised in both cases or because the issues are similar.

Question 7

Which are the 4 parts of a judgement?

Answer 7

ILAC: Issue, Law, Application (in which we find the ratio), Conclusion

Question 8

Which are the cons of the doctrine of precedent?

Answer 8

Fossilization of law and injustice might be done in individual cases