Download The Doctrine of Precedent

THE DOCTRINE OF PRECEDENT
PRECEDENT
A previous decision made by a superior court on similar facts - it
requires that in certain circumstances a decision made on a legal point
made in an earlier case must be followed
The doctrine of precedent (stare decisis)
The hierarchy of courts
THE DOCTRINE OF PRECEDENT
• Stare decisis
• The doctrine of judicial precedent is based on stare decisis. That is the
standing by of previous decisions. Once a point of law has been decided in
a particular case, that law must be applied in all future cases containing the
same material facts.
• The doctrine is:
All courts are bound to follow decisions made by courts above them;
Appellate courts are normally bound by their own past decisions
THE DOCTRINE OF PRECEDENT – CONT.
The doctrine works by requiring judges to follow the decisions made in
previous cases, thus ensuring that there is a consistency in the law and
that people coming to the law will be able to make an educated
guess as to the potential success and likely outcome of their case
THE HIERARCHY OF COURTS
When a point of European Law is involved, the decisions of
the European Court of Justice are binding on all courts in
England and Wales
The House of Lords used to be the highest court in England
and Wales; now it is the Supreme Court of the UK
Hierarchy:
 The Supreme Court
 Court of Appeal
 Divisional Courts (High Court)
 Inferior courts: Crown Court, Magistrates’ Court, County Court,
Tribunals
ECJ
European Court of Justice
The European Court of Justice does not recognise the doctrine of
precedent and is free to depart from its own previous decisions.
Decisions from the ECJ are binding on all courts in England & Wales.
TYPES OF PRECEDENTS
Original
Declaratory
Binding
Persuasive
ORIGINAL PRECEDENT
Where there is no previous decision on a point of law that has to be decided
by a court, then the decision made in that case on that point of law is an
original precedent
When the court has to form an original precedent, the court will reason by
analogy (considering the cases that are nearest to it in principle)
DECLARATORY PRECEDENT
The judges in the case merely declared what the law has always been
Declaratory theory of law making
According to William Blackstone judges do not create or change laws. They
simply discover and declare what the law has always been. This means that
case law operates retrospectively since the law as declared has always
existed.
BINDING PRECEDENT
A past decision is binding if:
The legal point involved is the same as the legal point in the case now being
decided
The earlier decision was made by a court above the present court in the
hierarchy, or a court at the same level which is bound by its own past
judgments
The point was argued in the case
PERSUASIVE PRECEDENT
The one which the court will consider and may be persuaded by, but which
does not have to be followed, such as obiter dicta, a dissenting judgment or
ratios from decisions by courts lower in hierarchy
LAW REPORTS
The reasons for decisions of past cases must be properly recorded in order
for a system of precedent to operate effectively
From 1537 to 1863 various private law reports were used
Since 1863 the Incorporated Council of Law Reporting has produced the
official law reports
Judgments of superior courts are available on their official sites on the
Internet
RATIO DECIDENDI
In order for the doctrine of judicial precedent to work, it is necessary to be
able to determine what a point of law is. In the course of delivering a
judgment, the judge will set out their reasons for reaching a decision. The
reasons which are necessary for them to reach their decision amount to the
ratio decidendi of the case. The ratio decidendi forms the legal principle
which is a binding precedent meaning it must be followed in future cases
containing the same material facts.
Ratio decidendi - the reason for the decision
The principles of law that are essential to the decision
Defined as ‘any rule expressly or impliedly treated by the judge as a
necessary step in reaching his conclusion’.
OBITER DICTA
Statements in passing (‘things said by the way’)
Statements of principles of law that are not relevant to the decision
Can be persuasive
AVOIDING PRECEDENT
Judges may avoid following a previous precedent by:
•Overruling
•Reversing
•Distinguishing
Overruling
This is where a court higher in the hierarchy departs from a decision
made in a lower court. The previous decision is no longer binding.
Reversing
This is where a higher court departs from the decision of the lower
court on appeal.
Distinguishing
This is where the facts of the case are deemed sufficiently different so
that the previous case is no longer binding.
ARGUMENTS FOR THE DOCTRINE
Time saving
Certainty
Justice
Consistency
Flexibility
ARGUMENTS AGAINST THE DOCTRINE
Promotes laziness
Stagnation
Backwards looking
Difficult to remedy mistakes
VOCABULARY
Binding precedent – obvezujući presedan
Persuasive precedent – preporučljivi presedan
Precedent law – pravo riješenih slučajeva
Divisional courts – sudski odjeli Visokog suda
Law Reports – zbirka sudskih odluka
Dissenting judgment – sudska odluka uz izdvojeno mišljenje
Ratio decidendi – razlog za donošenje odluke
Obiter dicta – usputne primjedbe
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