0.2 - Judicial precedent Flashcards
What is judicial precedent?
Decisions (also known as precedents) made by senior judges, may bind the decisions of other judges in the future.
What is the definition of stare decisis?
Stand by what has been decided and do not unsettle the established.
Give an explanation of stare decisis.
It supports the idea of fairness and provides certainty in the law.
What is the definition of ratio decidendi?
The reason for deciding.
Give an explanation of ratio decidendi.
In a judgement the judge is likely to give a summary of the facts, review arguments and the explain the principles of law he is using to come to the decision. These principles are the important part of the judgement and is the ratio decidendi.
What is the definition of obiter dicta?
Other things said.
Give an explanation of obiter dicta.
Judges in future case do not have to follow this. Sometimes a judge will speculate what his decision would have been if the facts had been different. This hypothetical situation is part of the obiter dicta and the legal reasoning put forward may be considered in future cases, although it is not binding precedent.
What is original precedent?
A decision on a point of law that has never been decided before.
The judge is likely to look at cases that are the closest in principle and may decide to use similar ones.
What is binding precedent?
A precedent set in a higher court from a previous case, that must be followed by all lower courts. It is only created when the facts of the second case are sufficiently similar to the original case.
What is persuasive precedent?
A precedent which a judge is not obliged to follow and is not binding on the court, but the judge may consider it and decide it is a correct principle as he is persuaded that he should follow it.
What are the inferior (lower) courts?
County court
Crown court
Magistrates’ court
What are the superior (higher) courts?
High court
Court of appeal
Supreme court
European court of human rights
What is the hierarchy of courts from highest to lowest?
European court of human rights
Supreme court
Court of appeal
High court
Crown court
County court
Magistrate’s court
Why do the Count, Crown and Magistrate’s court not create precedents?
There are far too many cases going through them.
They do not publish judgements that could be used.
What courts is the Supreme Court bound by?
European Court of human rights
Not itself
