U4 4.1.8 - Features of the docterine of precedent Flashcards
Define: material facts
Key facts or details that were critical in the courts decision
Define: Doctrine of precedent
the rule that reasons for the decision of higher courts are binding on lower courts in the same hierarchy in cases where the material facts are similar
Define: ratio decidenti
reason for deciding
Define: obiter dictum
statements made ‘by the way’
How is precedent made?
comes from the ratio decidenti, which creates a principle to be used by judges to decide future cases
What are the types of precedent?
- binding precedent
- persuasive precedent
What is a binding precedent?
- a precedent that must be followed by lower courts when resolving disputes with similar material facts
What is a persuasive precedent?
- a precedent that can be considered but doesn’t have to be followed
- may be from a different hierarchy, country or coordinate courts
What are the four ways of treating a precedent?
- Reversing
- Overruling
- Distinguishing
- Disapproving
What is reversing a precedent?
When hearing a case on appeal from a lower court, a judge in a superior court may disagree with and decide to change the previously established precedent set by the lower court
What is overruling a precedent?
judge in a superior court may decide not to follow a previously established precedent set by a lower court in a previous different case
What is disapproving a precedent?
Judges and magistrates in lower courts who are bound to follow precedents may express their dissatisfaction of the precedent
- may encourage a higher judge to change the precedent
What is distinguishing a precedent?
a judge may be able to avoid following an existing binding precedent if they can find a difference in material facts between cases
