24 - Judicial Precedent Flashcards
How does a judge decide questions of law?
A judge decides questions of law by interpreting the common law, equity or legislation.
Court hierarchy?
A court that is more important is known as a superior court and one that is less important is known as an inferior court.
When a judge has to interpret the law they will generally always have to follow the interpretation of the law by a superior court. This system is sometimes called stare decisis (Latin for let the decision stand).
What are judicial precedents sometimes referred to as?
Judicial precedents are sometimes collectively referred to as case law and are regarded as part of the common law.
How can information be found on previous cases?
Judges and lawyers can find previous cases because important cases are recorded in various law reports.
Acts of Parliament…
In the last lecture we looked at Acts of Parliament which is supposed to be one of the most important sources of law.
It is often said that Parliament makes the law and the courts simply apply it but this is not strictly true.
Decisions of superior courts are a primary source of law in their own right and this is because England and Wales has a common law based tradition – i.e. decisions of the court can amount to law in the same way as statutory law does. It is not just minor matters where the common law becomes involved. Murder – arguably one of the most important criminal offences, is a common law offence.
Even where Parliament has passed a law…
Even where Parliament has passed a law it falls to the courts to decide what this law means and how it will be applied.
When a judge has to interpret the law…
When a judge has to interpret the law he or she will look to see if that law has been interpreted by a court before. The judge will generally always have to follow the interpretation of the law by a superior court. For instance, judges of the Divisional Courts and Crown Court are bound by the decisions of the Court of Appeal and House of Lords while the Court of Appeal is bound by the decisions of the House of Lords.
Obiter Dicta
The remainder of the judgement is called obiter dicta (‘other things said’) and judges in future cases do not have to follow it.
Ratio Decendi
Precedent can only operate if the legal reasons for past decisions are known.
Therefore at the end of a case there will be a judgement – which is a speech made by the judge giving the decision and more importantly explaining the reason for that decision.
In a judgement the judge is likely to give a summary of the facts of the case, review the arguments put to him by the advocates in the case, and then explain the principles of law he is using to come to the decision.
These principles are the important part of the judgement and are known as the ratio decidendi which translated means the ‘reason for deciding’. It is important because this is what makes the judgement binding for future judges to follow.
General…
Based on the Latin maxim stare decisis (‘stand by what has been decided’ ) – supports fairness in the law and provides certainty.
Precedent can only operate if the legal reasons for past decisions are known - These reasons are known as the ratio decidendi (the ‘reason for deciding’).
The remainder of the judgement is called obiter dicta (‘other things said’) and judges in future cases do not have to follow it.
Doctrine of Precedent
A proposition in one case will be binding in a later case if:
It is a proposition of law
Part of the ratio decidendi of the earlier case,
Decided in a court binding on the present court, and
There are no relevant factual distinctions between the two cases.
What are the advantages of precedent?
Certainty
Consistency and fairness
Precision
Flexibility
Time-saving
Advantages of Precedent
Certainty
Because the courts follow past decisions, people know what the law is and how it is likely to be applied in their case. It allows lawyers to advise clients on the likely outcome of cases. It allows people to operate their businesses knowing that financial/other arrangements they make are recognised by the law.
Advantages of Precedent
Consistency and Fairness
It is seen as just and fair that similar cases should be decided in a similar way. The law needs to be consistent if it is going to be credible.
Advantages of Precedent
Precision
As the principle of law are set out in actual cases the law becomes very precise. It is well illustrated and gradually builds up through the different variations of facts in various cases.
