THE DOCTRINE OF PRECEDENT- Flashcards
What is the English system of precedent based on?
-The latin maxim ‘stare decisis’
What does ‘stare decisis’ mean?
‘stand by what has been decided and do not unsettle on the established’
What is entailed in the judgement speech?
(5)
(seal)
- giving the decision/explanation of the reasons of decision
- gives a summary of the facts of the case
- Reviews the arguments put to him by advocates
- explains the principles of law used in decision
What are the principles of a judgement named in latin?
&What does this mean
‘ratio decidendi’
-the reason for deciding’
What does the ratio decidendi do?
Creates precedent for judges to follow in future cases
If the judgement is the ratio decidendi, what is the rest of the judgement known as?
+what does this mean ?
Obiter dicta
‘Other things said’
How do Divisional Courts&The Court of Appeal cases differ to Courts of first instance in regards to the judgement?
Divisional Courts&The Court of Appeal cases are heard by at least 2 judges, usually 3 , unlike the courts of first instance where there will be only one judge and therefore only 1 judgement
How does the Supreme Court differ from all other courts in terms of judges ?
Supreme Court judges panel consist of uneven number of judges, 3,5,7,9 in order to achieve a majority verdict
-More than 1 judgement
When is it common for there to be more than one judgement in a case?
(2)
- cases involving particularly important or complicated point of law
- Judges may want to explain their legal reasoning on the point , E.g a dissenting judge
What is a complication of reading older judgements on cases for judges to now use to refer to past precedent?
Older judgements are usually in a continuous form and so there are no headings specifying what is meant to be part of the ratio and what is meant to be the obiter
What has Sir Rupert Cross defined ratio as?
‘any rule expressly or impliedly treated by the judge as a necessary step in reaching his conclusion’
What has Michael Zander defined ratio as?
‘a proposition of law which decides the case, in the light or in the context of material facts’
What part of a judges statement, if stated, would be part of the obiter dicta ?
-If the judge speculated as to what their decision would have been if the facts of the case had been different
How are hypothetical situations created by the judges in obiter dicta important?
They can be considered in future cases
BUT is not a binding precedent
what idea does ‘stare desis’ support?
-Supports the idea of fairness and provides certainty in law
