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

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Uzmah Rashid        November 10, 2008

Briefly explain what is meant by the doctrine of judicial precedent. (10 Marks)

Judicial precedent refers to the sources of law where past decisions made by judges create law for future judges to follow. The English system of precedent is based on stare decisis, which translated from Latin loosely means “To stand by what has been decided”. Stare decisis provides fairness and certainty in the law. It is divided into two parts: ratio decidendi and obiter dicta. Ratio decidendi are the principles of law that a judge has used to come to the decision at the end of a case, which is outlined in his speech. Ratio decidendi loosely means “Any rule expressed or implied by the judge as a necessary step in reaching his conclusion”. Obiter dicta refers to “the other things said” by the judges and does not have to be followed by future judges. An example of this may include what the judge’s decision would have been if the facts were different but does not have to followed as it is not binding precedent. It is often difficult to distinguish between ratio decidendi and obiter dicta as the judgement is usually in a continuous form, without any headings specifying what is ratio decidendi and what is not. Original precedent is a new legal rule established through a case decision. Binding precedent must be followed by the court and persuasive precedent does not have to be followed but can be followed if needed. An example of a past case where persuasive precedent is used is R v R (1991) where the House of Lords agreed with and followed the same reasoning as the Court of Appeal in deciding that a man could be guilty for raping his wife.

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        Courts operate a very rigid doctrine of judicial precedent which has the effect that every court is bound to follow any decisions made by a court above it in the hierarchy, and courts which hear appeals are bound by their own past decisions. The highest court affecting our legal system is the European Court of Justice (ECJ). A decision made by this court is binding on all other courts. Below the ECJ, is the House of Lords and its decisions bind all other courts in the English Legal system. Below the House of Lords is the Court of Appeal (civil ...

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This is a generally accurate answer, which at times contains some case authority and examples in support of the basic description. It is important to just answer the set question - not to include irrelevant material such as advantages and disadvantages. Rating ***