Precedent and common law

Question 1

PRECEDENT IN PRACTICE DEALING WITH CASES What do you do?

Answer 1

→ Apply
→ Distinguish
→ Reverse
→ Overrule

You will also have to say which case applies to your case.

Question 2

What are the 3 types of cases?

Answer 2

Favourable
Adverse→ You do not want this one: You will have reverse it or overrule it.
Neutral

Question 3

Favourable cases

Answer 3

• similarity of facts entail same decision: Ratio decideni
• present facts fall within the scope of the precedent’s facts
• principle of law in precedent should be applied in the present case

Can be favourable in - result - reasoning - both

Question 4

Adverse cases

Answer 4

• Distinguish on facts
• Distinguish on principle

▪ precedent was wrongly decided
▪ precedent is weak authority
* faulty interpretation of prior case
* decision given per incuriam
* since overruled or doubted
* irreconcilable with prior or subsequent decisions

▪ precedent is weak for practical reasons:
* court of low authority
* scope of decision is unclear
* weak reasoning
* influenced by special considerations
* social conditions have changed
* report is unreliable → Not all decisions are fully reported.
* decision criticised by academics

• Additional weight may be attached to a precedent by:
  ▪ the (good) reputation of the judge→ It will have stronger authority
  ▪ subsequent approval of the case→ The case was again and again apporved

Question 5

DIFFICULTIES WITH THE DOCTRINE

Answer 5

• May be inflexible
• Repetition of substantively unjust principles (e.g. marital rape) This case was overruled in 1991 RvR case
• May be unpredictable
• Problems with decisions

Question 6

DIFFICULTIES WITH THE DOCTRINE: Problems with decisions

Answer 6

Facts:
▪ Are they ever identical? If not are they anologous?
▪ Which facts are analagous?
▪ Must similar facts be treated in the same way?

Differences can be a) different but not significant; b) different but same principle o

Rule:
▪ What is it? Which part is the ratio decidendi and which the obiter dicta? All sorts of things they will say on the case and law/ NOT THE LEGAL REASONINF OF THE ACTUAL JUDGMENTS.
▪ Which rule is to be followed given the various opinions or judgments in a case? YOU WILL HAVE TO LOOK FOR OBITER DICTA.