“The system of Judicial Precedent permits both flexibility and stability in the law.” Explain and comment on how precedent achieves both these aims.

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Judicial Precedent

"The system of Judicial Precedent permits both flexibility and stability in the law." Explain and comment on how precedent achieves both these aims.

Judicial precedent is based on the doctrine of "stare decisis". This comes from the Latin phrase, "stare decisis et non quieta movere", which means "stand by what has been decided and do not unsettle the established". The purpose of this is to create certainty and fairness.

Precedent is created by the judgements on past cases. The judgement 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 judgements 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 judgement is called the "obiter dicta" ("other things said"). This is where the judge may speculate on how his decision may have changed had the facts been slightly different. The "obiter dicta" is not binding precedent, although the legal reasoning used may be considered in other cases. An example of this is Central London Property Ltd v High Trees House Ltd (1947). In this case, a block of flats in London were leased to a company for a period of 99 years. During the Second World War it was difficult to find tenants for the flats, so the main landlord decided that the company need only pay half the normal rent. After the war the landlord decided he wanted full rent again. In the case, Denning J (the judge of the case) decided that the landlord was entitled to the full rent as the war was over, and in his "obiter dicta" he speculated on what his decision may have been had the landlord tried to claim "back rent". He said that the landlord would have been estopped from claiming, and since this case it has sometimes been decided that it is inequitable for one party to rely on strict terms of contract if the other party is led to believe they will not.
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There are different types of precedent within the law. The first is "original precedent". If a point of law in a case has never been decided before, then the decision of the judge in the case forms an original precedent. To help a judge make his decision, he may reason by analogy. This means he will look at cases that are similar and use them to make a judgement. This way of reasoning was used in Hunter and others v Canary Wharf Ltd and London Docklands Development Corporation (1995), when a tower was built by the defendant in ...

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