Doctrine of Precedent and the Hierarchy of the Courts
Precedent operates under the idea of the Latin phrase, "Stare decesis et non quieta movere", stand by what has been decided and do not unsettle the established. Which means a decision made in one case is binding on all following cases of similar fact in lower courts. There are three main principals involved. Ratio deciendi which is the reasoning behind the judges decision. This is the binding element of a case. Then there is the reliable system of law reporting. There are so many cases each day that the law keeps changing. Also there is court hierarchy, precedents made in the higher courts are followed by lower courts.
The higher courts in the hierarchy binds all courts lower than it. It creates precedents that are followed by inferior judges when the facts of the cases are similar. The ratio deciendi must also be similar, however if the judge feels that the reasoning is different then they create a new precedent which if followed by judges more inferior to them.
There are three types of precedent. They are binding, persuasive and original precedent. Binding precedent is when decisions made in previous cases must be followed later even if the judges do not agree with the principle in it. It only comes from the ratio decidendi of the past case and only applies if the facts are sufficiently similar. Persuasive precedent is not binding on any courts but can be referred to in later cases by judges. This comes from either the obiter dicta, dissenting judgements or judgements of the Pivy Council and Commonwealth courts.
Precedent operates under the idea of the Latin phrase, "Stare decesis et non quieta movere", stand by what has been decided and do not unsettle the established. Which means a decision made in one case is binding on all following cases of similar fact in lower courts. There are three main principals involved. Ratio deciendi which is the reasoning behind the judges decision. This is the binding element of a case. Then there is the reliable system of law reporting. There are so many cases each day that the law keeps changing. Also there is court hierarchy, precedents made in the higher courts are followed by lower courts.
The higher courts in the hierarchy binds all courts lower than it. It creates precedents that are followed by inferior judges when the facts of the cases are similar. The ratio deciendi must also be similar, however if the judge feels that the reasoning is different then they create a new precedent which if followed by judges more inferior to them.
There are three types of precedent. They are binding, persuasive and original precedent. Binding precedent is when decisions made in previous cases must be followed later even if the judges do not agree with the principle in it. It only comes from the ratio decidendi of the past case and only applies if the facts are sufficiently similar. Persuasive precedent is not binding on any courts but can be referred to in later cases by judges. This comes from either the obiter dicta, dissenting judgements or judgements of the Pivy Council and Commonwealth courts.
