• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Judicial Precedent

Extracts from this document...


Judicial precedent The doctrine of judicial precedent is based on the principle of stare decisis, meaning 'to stand by what has been decided'. Under this doctrine, legal decisions made by judges in higher courts set a precedent for judges in equal or lower courts to follow. For the system to operate successfully, three things are required: 1. a ratio decidendi 2. an accurate record of legal proceedings, otherwise known as law reports 3. a hierarchy of courts Ratio decidendi Ratio decidendi, meaning 'the reason for deciding', is the legal principle laid down in each case. It is given by the judge at the end of a case as the explanation of his/her decision. It is the ratio decidendi which must be followed in future cases of similar fact, this is what is meant by a binding precedent. For example, in R v Howe (1987) the defendant was found to be guilty of murder as his defence of duress which he had pleaded had been found unsubstantial by the House of Lords in a previous case of similar fact. ...read more.


Finally dissenting judgements are also persuasive. As I mentioned earlier more than one judge sits in the Court of Appeal. Sometimes the verdict is reached by only a majority of the judges rather than it being a unanimous decision. In this situation the judges in the minority will also give the reason behind their decision. This is called a dissenting judgement. Law Reports In order for the system of precedent to operate and expand, cases must be recorded and published. Until the mid 19th Century law reports were published privately. Standards of reporting varied greatly and some were little more then a few scribbled notes by students and even members of the public who then sold them to lawyers. However, when the Incorporated Council of Law Reporting was established in 1865 law reporting became more comprehensive and systematic. There are also private law reports. These include the All England Law reports, published by Butterworths, which started in 1936. Another source of law reports is the media. Some newspapers have their own law reports, for example The Times Law Reports. ...read more.


Reversing This is similar to overruling except it is generally done on appeal. The verdict is changed and this automatically changes the precedent, even if the judge does not specifically say so. Disapproving This is when the judge declines to follow the existing precedent because he feels that it is inappropriate to the current case. By narrowing a ratio decidendi A judge in a later case decides that the previous ratio will only apply to those circumstances; therefore he is not bound by it. This is generally done when the old ratio has been criticised. By demoting a ratio decidendi to an obiter dictum Where a judge in a later case decides that the precedent set was actually an obiter statement, not a ratio, he therefore does not have to apply it. By stating that the ratio was wrong (per incuriam) The ratio in a previous case had ignored conflicting law and the precedent is therefore invalid. By referring to the new provisions of the Human Rights Act 1998 This allows judges to change precedents which conflict with this Act (applies to precedents set before 1998). ?? ?? ?? ?? Vicky White 1 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

3 star(s)

Describing precedent is well covered for ratio/obiter and law reporting. The hierarchy of the courts is covered only by diagram.
Avoiding precedent has accurate description which needs to be supported by reference to cases.

Marked by teacher Nick Price 01/05/2013

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. Marked by a teacher

    Common Law and Equity

    5 star(s)

    The College went to the common law court and the common law judges refused the Earls claim, however, the Earl went to the Court of Equity and they said that he should be able to keep the land. The dispute was then referred to the king who decided that "when common law and equity are in conflict, equity shall prevail".

  2. Marked by a teacher


    4 star(s)

    Donaghue v Stephenson (1932) snail in a bottle case - negligence. As there are no past cases for the judge to base his decision on, he is likely to look at cases that are closest in principal and he may decide to use similar reasoning.

  1. Marked by a teacher

    the english legal system unit1 assignment4

    4 star(s)

    They have automatic rights of audience in all courts from the day they enter the profession. For this reason, there are times when barrister representation is essential and such representations form the bulk of their work. They also have other duties which may include for example drafting legal documents in court proceedings (called 'Statements of Case').

  2. Marked by a teacher

    Briefly explain what is meant by the doctrine of judicial precedent.

    3 star(s)

    decisions made by a court above it in the hierarchy, and courts which hear appeals are bound by their own past decisions.

  1. Marked by a teacher

    Common Law and Equity - its history and development

    3 star(s)

    In common law there are no maxims stopping you whereas in equity there are. One example of a maxim is 'He who comes to equity must come with clean hands'. This means the claimant themselves must not be wrong in some sort of way otherwise they could not claim their remedy.

  2. Common Law and Equity Essay

    Maxims are sayings that express principles of equity. These maxims were designed to ensure that decisions were morally fair. A maxim which elaborates on how equity operates is "equity acts as a shield not as a sword", this states that equity is used to protect not to punish people.

  1. explain judicial precedent

    This begins what can be lengthy and very expensive process. Normally only the rich or those backed by an organisation such as Union or professional will do this. Appeals where precedent is most likely to be set. An appeal from the county court of high court can go to the

  2. Common Law and Equity

    So equity could order A to perform his contract and sell B the vase. Equity was very flexible, unlike the rigid, formal common law, and it was not bound to the common law so it could grow and expand. Equity could aid and supplement the common law where it was restricted.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work