Judicial Precedent Flashcards
Define judicial precedent
Standing by or following decisions in previous similar cases.
Define stare decisis
Means “stand by what has been decided and do not unsettle the established”
Define ratio decidendi
This is the reason for the decision. Forms a precedent for future cases.
Define obiter dicta
Means “other things said”. The things stated in the course of a judgment which are not necessary for the decision.
What are the advantages of judicial precedent?
- certainty
- consistency
- fairness
- precision
- flexibility
- time saving
- law can evolve
How is certainty an advantage?
Allows the law to be predictable so people know how it will be applied in their case.
Allows lawyers to advise clients on the outcome of their case.
Promotes ADR in civil cases.
How is consistency an advantage?
Promotes a sense of justice because similar cases are decided in a similar way .
The law must be consistent if it is to be credible.
How is precision an advantage?
The exact details of the law are known by each party.
The law is well illustrated and gradually builds up through the different variations of facts in cases that come before the courts.
How is time-saving an advantage?
Predictability makes ADR more likely, thus saving courts/parties money.
Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.
How is the law evolving an advantage?
Law can evolve to meet changing social attitudes. For example, making rape within marriage an offence.
What are the disadvantages of judicial precedent?
- rigidity
- complexity
- illogical distinctions
- slowness of growth
- bad precedent
How is rigidity a disadvantage?
Binding decisions can restrict decisions made in the interests of individual justice.
The facts that lower courts have to follow decisions of the high courts makes the inflexible, so that bad decisions may be perpetrated.
Change in the law will only take place if parties have the courage, persistence, and money to appeal.
How is complexity a disadvantage?
Not easy to find all relevant case law since there are half a million reported cases.
Judgements are long and difficult to read, so its not always easy to find the ratio decidendi and obiter dicta.
How is illogical distinctions a disadvantage?
Some cases are distinguished on very minor or controversial points (eg, based on sexuality).
How is slowness of growth a disadvantage?
The development of precedent depends on accidents of litigation. (waiting for similar case to come along).
