AS LAW -JUDICIAL PRECEDENT
What is meant by judicial precedents and that judges "are not in liberty to reject them"? (a)Precedent is a law which has been created and is used to make decisions on cases. There are four types of precedent; judicial precedent is when past decisions made by judges are used to create law for future judges to follow. This part of the law is called case law and is used today. If a precedent is bound or binding then this means that a judge must use a previous case and are tied into it and cannot ignore the precedent. If a precedent is persuasive this means that a judge can ignore a past case but can choose to use the decision if they are persuaded that the principles are correct. Finally if you choose to follow a precedent then this is the process of using a past precedent in a future similar case. The Doctrine of Stare Decesis is when cases are treated alike. In order to achieve cases being treated alike, the system was in need of rules. These laws created the source of law known as precedent. In order to create a precedent a judge must make a judgement recorded for future judges. The judgement can be divided into two areas; Ratio Decidendi which is the reason behind the decision. This is part of the judgement that sets out the core of the decision and the reason behind it. It is part of a decision which a future case must be decided by. Secondly a case can be decided on by
AS LAW - Judicial Precedent
Judicial Precedent Judicial Precedent Read Elliot and Quinn page 5 to 23. ) Doctrine of Stare Decisis The English system of precedent is based on the Latin maxim: "Stare Decisis et Non Queita Movere", stand by what has been decided and do not unsettle the established. The idea is that by following precedents, which are the previous decisions of judges, fairness and certainty will be provided. Precedents can only operate if the legal reasons for past decisions are known. Therefore, at the end of a case (civil) there will be a judgement in which the judge will give not only the decision but also the legal reasoning which lies behind it. 2) Ratio Decidendi This is the legal reason or principal which lays behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases. The remainder of the judgement is known as the: 3) Obiter Dicta "Other things said by the way." These comments do not form part of the ration (reasoning) and are therefore not part of the precedent. For instance, sometimes a judge will speculate on what his decision would have been if the material facts had been different. Sometimes, part of the Obiter Dicta may be put forward in future cases and although it will not form a binding precedent it may help to 'persuade' a later judge towards a particular view in the law. N.B. It is sometimes difficult to
The Doctrine of Judicial Precedent.
The Doctrine of Judicial Precedent . (a) With case examples, explain how the doctrine of precedent operates within the English Legal System (15 Marks). Judicial precedent is the following of legal principles laid down by the House of Lords and the Court of Appeal in previously decided cases. When the House of Lords or the Court of Appeal produces a decision this becomes binding precedent which all later and lower courts must follow in cases of similar facts. It works on the basis on stare decisis meaning that judges must stand by original decisions made by the House of Lords or Court of Appeal. At the end of an appeal the 5-7 judges in court reach a majority verdict and this is announced by one of the judges with reasons for their decision. This is the ratio decidendi which provides reasons for the decision reached. The ratio decidendi is binding therefore sets the precedent for later and lower courts to follow. Alongside the ratio decidendi is the obiter dicta which is not binding but acts as persuasive precedent and can be influential in future decisions. This is simply everything which is not part of the ratio decidendi used by the judge which may say how the verdict would have been if the facts were different. This precedent must be followed by all lower courts and in a situation where a lower court (e.g. Magistrates' court) has to make a decision where a relevant
Law Making - Judicial Precedent.
Module 1 - Law Making Judicial Precedent There are 2 sources of law: - . Common Law - Common assault and battery, Murder 2. Statute Law - An act of parliament OAPA 1861 s47, s20, s18 Theft act 1968 s9 (1) (a) Burglary, "A person is guilty of burglary is he enters any building or part of a building as a trespasser with the intention to commit GBH, Rape, Steal, or Criminal damage" Collins 1972 - Substantial and Effective Brown 1985 - Effective Ryan 1996 - Entry Compared with other legal systems the English legal system relies heavily on judicial precedent. A system of judicial precedent requires 2 basic things: - . A structure of hierarchy of the courts 2. A system of law reporting All courts have to follow decisions made in the HOL All courts except HOL have to follow decisions made in the COA. High court rules bind over lower courts These 3 courts (superior) make binding precedent. This stems from the 1870's. The basic requirements of judicial precedent where met by the English legal system in the 1870's. Cases prior to the 1870's can still create precedent but the system of reporting was some what different to the modern system (M'Naughton, 1843) Binding Judicial Precedent This is a rule of law which must be followed by all inferior courts. E.g. the precedent created in M'Naughton by the HOL sets out the rules of insanity which must be followed by all
Judicial Precedent
A judge must make decisions on the law laid out in a statute when there is no appropriate precedent. There are several approaches practiced by judges in this area. They range from the literal to the purposive. There are three 'rules' dictating opposing approaches for making a decision. The first is the 'literal rule' with which a judge takes an Act completely at its face value, declaring that the law should only be the literal meaning of the words contained in the Act, that 'if the words of an act are clear then you must follow them though they lead to a manifest absurdity' [Lord Esher, R v Judge of the City of London Court (1892)]. Although this is the rule most used since its development in the 19th century, it has often 'lead to a manifest absurdity'. For example, in Whitely v Chappell (1868), a man was found not guilty of impersonating 'any person entitled to vote' when he impersonated a dead person - who is not entitled to vote after death. Sometimes the literal approach can also result in are clearly unjust decisions. In London & North Eastern Railway Co v Berriman (1946), a widow was denied compensation from the negligence of a railway company that resulted in the death of her husband. The regulations specifically provided for men working near the railway line 'for the purposes of relaying or repairing it'. The court held that as the man was only painting the
The Doctrine of Judicial Precedent (Case Law).
The Doctrine of Judicial Precedent (Case Law) P.21-39 J.Martin In what part of the syllabus does this topic fit? Judge made law via the cases upon which they decide is one of the oldest sources of law. There are now at least 400,000 reported cases and some areas of law, such as the law of torts, are found mainly in cases. Describe The role of a judge: Definition of the doctrine of judicial precedent: What is a precedent? At the end of a case the judge makes a judgement, which is made up of two things: . Ratio decided: 2. Obiter dicta: Another phrase for the doctrine is stare decisis, which is Latin for "let the decision stand". The doctrine is quite rigidly applied by judges and is dependent upon a strict hierarchy of courts. Annotate the triangle to represent the way in which the hierarchy of the courts works: The House of Lords is binding on all courts below it and is bound by no other court (other than by the European Court of Justice on matters of European Community Law only). The Court of Appeal is bound by the House of Lords but is binding on all courts below it. Below the Court of Appeal, only the Divisional Courts and the High Court create precedent. Inferior courts, ie............................................................ ...................................... and tribunals do not create precedent, but have to abide by the
What is the doctrine of judicial precedent? Must judges in all circumstances follow legal precedent?
What is the doctrine of judicial precedent? Must judges in all circumstances follow legal precedent? The doctrine of judicial precedent is that, to make common law fair, judges in their rulings, should follow past decisions made by other judges, in similar cases. This is based on the maxim 'stare decisis et non quieta movere' which means 'stand by what has been decided and do not unsettle the established'. This creates fairness and provides certainty in the law. Judicial precedent is known as 'the tool of common law'. It is one of common law's main sources. Although judicial precedent is known as 'judge made law', judges follow judicial precedent to avoid making new law. If judges frequently made law instead of enforcing it, we would not have a democracy in Britain. Judges want to protect democracy and them making law could lead to a dictatorship. Judges' at the end of a case explain their decision in a speech, as precedent can only operate of the legal reasons for past decisions are known. These speeches are recorded and stored in the All England Law Reports. These Law reports are made into thick books, which judges in future cases can look back on, to follow the same principles of previous similar cases. There is always one speech, which is a combination of at least three of the five law lords' speeches. Three of the five judges have to agree before is ruling is passed.
The Role of Ratio Decidendi in Judicial Precedent.
The Role of Ratio Decidendi in Judicial Precedent Ratio decidendi plays a very important role in judicial precedent as it is the legal principle underlying the decision in a particular case. Therefore, it creates the precedent for future cases and is considered the most important part of a judge's speech. Judicial precedent, which is case law, has been and still is a major source of law in the English system. The decisions from previous cases create law for future judges to follow. The English law system is based on the Latin principle of stare decisis, which means 'stand by what has been decided and do not unsettle the established,' i.e. follow the common law, don't try to change it. There are different types of precedent; original, binding and persuasive. Original precedent is a point of law where a new case that hasn't been decided on in the past. In these cases the judge would look at cases that appear closest, the judge would use the case to reason by analogy. A case where the judge had to reason by analogy was in 1995, the case was Hunter and others V Canary Wharf Ltd. The case was about a 250m high tower that Hunter said caused interference with television reception. A decision needed to be made as to whether the tower did cause problems, but because this was an unusual case the judge didn't have a directly related ratio decidendi to refer to and so he found a case
Sources of Law - Judicial precedent.
Sources of Law - Judicial precedent Definition: Where past decisions of judges are followed in future cases when the acts of the case similar. Once a judge has laid down a legal principle, this same legal principle must be used in future legal cases similar facts. Also known as case law or common law. Judicial precedent is based on: * The judges' judgement * Hierarchy of courts * A good system of law reporting Judges' Judgement Divided into three parts: - * Res judicata - the outcome of the case e.g. judge finds for X * Ratio decidendi - the legal principle used to reach the decision. Forms the binding part of the judgment i.e. the part that has to be followed. * Obiter dicta - things said by the way Can be of two types: - i) Widens the principle laid down in the ratio. Donoghue and Stevenson ii) Discusses alternative situations Hedley Byrne v Heller The obiter dicta forms a persuasive precedent - does not have to be followed but may be in future case Exercise Research the following cases: - * Hedley Byrne v Heller (1963) - tort * Central London Property v High Trees (1947) - contract * R v Howe (19870 - criminal Hedley Byrne v Heller (1963) - tort The Facts - An advertising company was approached with a view to preparing a campaign for a small company, Easipower, with whom they had not previously dealt. The advertisers then did the most sensible
Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how far Judges are Bound by Decisions in Previous Cases.
Explain and Illustrate, the Operation of the Doctrine of Judicial Precedent and Discuss how far Judges are Bound by Decisions in Previous Cases One of the fundamental characteristics of the British Legal System is that of Judicial Precedent. The rules dictate that in certain circumstances a decision be followed whether the second court approves of the precedent or not. In more simple terms, this means when a judge must follow any decision a higher court has made about a case with similar facts. The judgement of a court can be divided into two. Each part as a Latin name; the ratio decidendi and the obiter dicta (which is explained later). Ratio decidendi translates as "the reason for the decision". A definition of the ratio decidendi is one by Professor Cross, which is: "Any rule of law treated by the judge as a necessary step in reaching his conclusion". So, the ratio of a case is the rule of law, which dictated the outcome of the case. In Donoghue v. Stevenson, the claimant suffered through finding the remnants of a decomposed snail in her ginger beer. She sued the manufacturer. It was held that he owed his consumers a duty to take care. The claimant won on this point of law. The basics of Judicial Precedent are best illustrated in the case of Re Schweppes Ltd's Agreement (1965). Here the court of Appeal, with Willmer L.J. dissenting, ordered discovery of
