Judicial Precedent

Judicial Precedent by Anthony Harte Judicial precedent often referred to as case law, is one of the main sources of English law. Its roots go back to the early common laws of the country. It is based on the Latin maxim Stare decisis et non quieta morvere, which loosely translated means, stand by what has been decided and do not unsettle the established. In order for the judicial precedent system to work, an accurate detailed method of reporting cases is of great importance. After each case, a judge will give a speech, which contains two parts. The most important part is the section that contains details of the principle of law that has been used to base his decision on. This is called the ratio decidendi and means reason for deciding this is the part that creates binding precedent. The rest of the speech is called the obiter dicta, which means other things said. Although this part does not create binding law it may be persuasive, other judges may refer to it and speculate as to what the decision would have been if the facts of the case had been different. This all seems very simple, but in fact, it can be very difficult to find the all important ratio decidendi in the speech. The speech is not given in two parts, the ratio decidendi and obiter dicta are given in a continuous form, not headed up specifying the two separate areas. As a result, it is often difficult for

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Judicial Precedent

Judicial Precedent Where the facts of a case are similar to a one which has already been decided, the judge must follow that previous decision, especially if the decision was reached by a higher court in the hierarchy. This is the basis of judicial precedent and is called stare decisis-'let the decision stand.' After hearing a case, a judge presents his written judgement (case law) which sets out the facts of the case and legal principles used. The legal principles are set out in the ratio decendi-'reasons for deciding.' The ratio decendi also forms the basis of binding precedent. Obiter dicta is another part of the judgment and means 'things said by the way.' This forms the basis of persuasive precedent. For the system of precedent to work there must be strict rules for a judge to follow. There is a system of hierarchy where higher courts bind lower courts. The European Court of Justice binds all UK courts. The House of Lords is the highest appeal court in UK. Binds all lower courts and itself unless the decision was 'per incuriam' (in error) or it uses the Practise Statement 1966, which is used very sparingly and only when it would be just or right to depart from an earlier decision. The Court of Appeal binds all lower courts and itself unless under Young v Bristol Aeroplane Co Ltd where the decision was per incuriam or where two Court of Appeal decisions conflict or

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Judicial precedent.

Judicial precedent. . Give another name for judicial precedent. Case law is another name for judicial precedent. 2. What is judicial precedent? Preceding cases/trials setting new legal principals for cases to follow and developing them along the way. 3. Name two major developments which assisted development of judicial precedent. The judicature acts 1873-75 (laid down modern hierarchy of courts) and the development of an efficient system of law reporting (creation of the council of law reporting - 1865). 4. What is Res Judicate? The judge's decision. 5. What is the ratio decidendi? The reason for the judges decision 6. What is obiter dicta? Matters spoken by the way. 7. When a legal principal is established, what is it known as? It is known as precedent. 8. What is binding precedent? Precedent that binds courts below it. I.e. the House of Lords binds the Court of Appeal, the Court of Appeal binds the Divisional Court etc. 9. What is persuasive precedent? Decisions not binding on the lower courts but may strongly influence their decisions and use them as support. 0. Explain how the system of binding precedent works in relation to the following courts; (The House of Lords; its decisions are binding on all lower courts, in the 20th century it had regarded itself as bound by its own decisions until the 1966 practice statement which allows them to depart from their

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Judicial Precedent

Judicial Precedent Mehzeb Rahman Chowdhury Centuries ago when the English legal system was being evolved into how we know it today, the doctrine of precedent came about. It involved King Henry II permanently implementing the circuit system, which was basically a system by which the king sent judges to different parts of the country, which he divided into individual circuits, to resolve disputes among unhappy citizens. If the Royal Court of Justice endorsed a decision of one of the circuits, it became binding on all the others. This is where precedent came into being. The English legal system of precedent is based on the Latin maxim stare decisis et non quieta movere which loosely translated means 'stand by what has been decided and do not unsettle the established.' This maxim upholds the idea of fairness and provides certainty in the law. In England and Wales, the courts follow a very rigid doctrine of judicial precedent so that: * every court is bound to follow any decision made by a court above it in the court hierarchy; and * appellate courts are generally bound by their past decisions. Precedent looks at the judgment given by the court at the end of the case in order to discover the legal reason for the decision. This legal reason or principle of law is the ratio decidendi of the case and it is the part of the judgment which effectively forms the binding precedent for

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Judicial Precedent

a) 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

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Judicial precedent

Assignment 2.2 A.) Judicial precedent comes from decisions made by judges which create laws for later judges to follow. Depending in which court a judge is operating in, they can be bound by that decision and must follow it, this is also known as case law. Precedent means once a decision has been made in one case on point of law, that decision must be kept in future cases. Although precedent has been around for hundreds of years it was only established in the late nineteenth century. Baron Parke an important judge of his era, said precedents must be regarded in subsequent cases and it was not open to the courts: "To reject them and abandon all analogy to them" (Mirehouse v Renell) Precedent is created by the judgments on past cases. The judgment is the speech made by the judge who has made the decision on the case, and it is split into two parts. It should be noted that there is often more than one judge hearing a case, and so there may be many judgments on one case. The first part is the "ratio decidendi" ("reason for deciding"). This is the most important part as it gives the judge's decision. He will give a summary of the facts of the case, review the arguments put by both sides, and explain the parts of the law (and any previous cases) he has used to make his decision. This is the part of the speech which creates the precedent. The other part of the judgment is called

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explain judicial precedent

Judicial Precedent Judicial precedent refers to the source of law where past decisions of the judges create law for future judges to follow. Ratio decidendi is the reason for deciding, it creates precedent for judges to follow in future cases. The ratio decidendi is the core to the decision, it is binding on similar cases heard by later judges. Original precedent is where if the points of law have never been decided before then whatever the judge decides will form a new precedent. Stare Decisis is stand by what has been decided and do not unsettle the established. This makes the system consistent, fair and predictable, higher courts bind lower courts. Stare Decisis allow previous decisions to influence later in similar cases and ensures that higher courts bind lower courts. Obiter Dicta is other things said and judges in future do not have to follow it, It includes the judges thought processes, The judges explanation as to why one decision was arrived at rather than another and how the judge is going to apply the decision to the present case. Hierarchy of courts One of the fundamental rules of stare Decisis is that the high courts take priority of the lower courts. Higher courts such as the HOL can tell lower courts what to do. The higher court has more senior and powerful judges sitting in it who can give orders and exert influence. The civil court system is

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What is judicial precedent?

What is judicial precedent? What are the main principles that are applied in judicial precedent? Are the different court structure being bound by the decision of others higher courts? To what extend binding precedent ensures the existence of both certainty and flexibility in common law? What are the other advantages and disadvantages that contribute to the doctrine of binding precedent? The doctrine of binding precedent or stare decisis, refers to the fact that, the decision of a higher court will be binding on a court lower than its hierachy. Judicial precedent can be applied on cases and to be treated similiarly when the material facts of the cases are identical. There are two main principles that are involved in judicial precedent, there are ratio decidendi and the obiter dictum. Ratio decidendi is a principle of law on which the court reaches its decision. The ratio decidendi of a case may be understood as the statement of the law applied in deciding the legal problem raised by the concrete facts of the case. The ratio of a case is binding on lower courts but may not be cited as persuasive authority in later cases. The second principle is the obiter dictum. It is a statement made by the judge that is not an essential part of the ratio decidendi. It is most referred that something said by the way. Obiter dicta a statements do not form part of the binding precedent, but

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Judicial Precedent

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: . 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. However, judges do not always make it clear what the ratio decidendi of their decision is, judgements are not set out with clear headings. Therefore it is up to the person reading the judgement to determine what exactly the ratio decidendi is. Also in the appeal courts, the decision is made by more than one judge. Even if all the judges reach the same decision they may have arrived at

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Judicial Precedent

Caitlin Moran - Law Exam Paper - January 2006 Exercise on judicial precedent (A) Distinguishing is a method that is sometimes used by a judge to avoid having to follow a past decision. The judge can use this method when they can prove that the material facts from the previous case are sufficiently different from the present case. If this is successful, then the judge is no longer bound by the previous case. An example of distinguishing being used is in Balfour v Balfour (1919) and Merritt v Merritt (1971). Both of these cases involved a wife making a claim against her husband for breach of contract.The claim was unsuccessful in the Balfour case as it was decided that there was no intention to create legal relations, it was merely a domestic arrangement between the married couple and so it was ruled that there was no legally binding contract. However, the more recent case (Merritt v Merritt) was successful because the court held that the two cases were sufficiently different, although the parties were husband and wife, they had seperated before the agreement had been made. Also, the agreement was in fact in writing. This is what distinguished the two cases as the agreement in Merritt was ruled not to just be a domestic arrangement, but a legally binding contract. (B) (i) Both of the cases would have had the same outcome because the practice statement did not come

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