Judicial Precedent

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Rebecca Turner        Assignment 2.2        08/04/2009

  1. Describe the system of judicial precedent

Judicial precedent is the system where the judge makes the law, where decisions that are made by the judges in the cases before them form case law.  In deciding each case the facts have to be established, in order to determine what truly happened, and secondly, how the law applies to those facts.  This application of the law on certain facts is what makes case law.  Once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be treated in the same way, as to make the system fairer and to provide a small amount of predictability, making it easier for people to abide by the law.

The judges listen to the evidence and legal argument of the case, and then prepare a written decision as to which party wins the case, based on what they believe the facts were, and how the law applies to those facts.  This decision is known as the judgement, which is split into two parts.  

The ratio decidendi is Latin for ‘reason for deciding’ and is the explanation of the legal principles on which the judge has made a decision; it is part of the judgement, known as binding precedent, and is what forms case law.  All parts of the judgement that do not form the ratio decidendi of the case are called obiter dicta, which is Latin for ‘things said by the way’, and is often discussions of hypothetical decisions.  None of the obiter dicta forms case law, though judges in later cases may be influenced by it, it is said to be a persuasive precedent.

In deciding a case, a judge must follow the decision that has been made by a higher court in a case with similar facts.  As well as being bound by the decisions of courts above them, some courts must also follow their own previous decisions and are said to be bound by themselves.

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The civil courts system consists of The European Court of Justice, House of Lords, Court of Appeal [civil division], Divisional Court of High Court [Chancery/Family], High Court and County Court.

The criminal courts system consists of House of Lords, Court of Appeal [criminal division], Divisional Court of High Court [Queens Bench Division], Crown Court and Magistrates Court.

The European Court of Justice is the highest civil court.  It binds all courts within the United Kingdom; however, it does not have to follow its own previous decisions.  

The House of Lords is the highest criminal court, unlike in the civil ...

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