Law Unit 2 P1
Judicial Precedent
The English system of precedent is based on the Latin maxim stare decisis et
non quieta movere (shortened to Stare Decisis). This means to stand by what
has been decided and do not unsettle the established. This supports the idea of
fairness and provides stability and certainty in law.
The Doctrine of Precedent
Precedent can only operate if the legal reasons for past decisions are known. At
the end of a case there will be a judgement and a speech will be given stating
the reasons for the decision, the principles of law he is using to come to this
decision are explained – these are an important part of the Ratio Decidendi
(which means the reasons for deciding). This is what creates a precedent for
judges to follow in future cases. The Ratio Decedendi forms a precedent. A major
problem in reviewing precedent in past cases is to separate the ratio decedendi
from the obiter dicta as older judgements are usually given in a continuous form.
The obiter dicta is a judge’s own speculation and thoughts on a case and does
not have to be followed as precedent however obiter dicta from previous cases
can be used by either the prosecution or defence.
Original Precedent if the point of law in a case has never been decided before
then the judge’s decision on this new point of law will form a precedent for future
cases to follow. It is an original precedent because there are no past cases to
follow/base his decision on. Judges may look at cases similar to it to aid his
decision but he will be making an original precedent. The way of arriving at a
judgement on an original precedent is called reasoning by analogy.
Binding precedent is a precedent from an earlier case which must be followed
even if the judge in the latter case does not agree with the legal principle. A
binding precedent is only created when the facts of the second case are
sufficiently similar to the original case and the decision was made by a court that
is senior to the current court e.g appellate court or Supreme Court. Sometimes
the court will be on the same level eg Crown Court.
Persuasive precedent is a precedent that is not binding on the court the judge
can consider it and decide that it is the correct principle so he is persuaded that
he should follow it. Persuasive precedent comes from a number of sources:
Courts lower in the hierarchy such an example is R v R (1991) where the
House of Lords agreed with and followed the same reasoning as the Court of
Appeal in deciding that a man could be guilty of raping his wife. Decisions of
the Judicial Committee and the Privy Council this court is not part of the
court hierarchy in England & Wales so its decisions are not binding however, due
to many of its judges being part of the Supreme Court the judgements of the
Privy Council are treated with respect and may often be followed. An example of
this can be seen in the law on remoteness of damage in the law of tort and the
decision made by the Privy Council in the case of The Wagon Mound (No 1)
Judicial Precedent
The English system of precedent is based on the Latin maxim stare decisis et
non quieta movere (shortened to Stare Decisis). This means to stand by what
has been decided and do not unsettle the established. This supports the idea of
fairness and provides stability and certainty in law.
The Doctrine of Precedent
Precedent can only operate if the legal reasons for past decisions are known. At
the end of a case there will be a judgement and a speech will be given stating
the reasons for the decision, the principles of law he is using to come to this
decision are explained – these are an important part of the Ratio Decidendi
(which means the reasons for deciding). This is what creates a precedent for
judges to follow in future cases. The Ratio Decedendi forms a precedent. A major
problem in reviewing precedent in past cases is to separate the ratio decedendi
from the obiter dicta as older judgements are usually given in a continuous form.
The obiter dicta is a judge’s own speculation and thoughts on a case and does
not have to be followed as precedent however obiter dicta from previous cases
can be used by either the prosecution or defence.
Original Precedent if the point of law in a case has never been decided before
then the judge’s decision on this new point of law will form a precedent for future
cases to follow. It is an original precedent because there are no past cases to
follow/base his decision on. Judges may look at cases similar to it to aid his
decision but he will be making an original precedent. The way of arriving at a
judgement on an original precedent is called reasoning by analogy.
Binding precedent is a precedent from an earlier case which must be followed
even if the judge in the latter case does not agree with the legal principle. A
binding precedent is only created when the facts of the second case are
sufficiently similar to the original case and the decision was made by a court that
is senior to the current court e.g appellate court or Supreme Court. Sometimes
the court will be on the same level eg Crown Court.
Persuasive precedent is a precedent that is not binding on the court the judge
can consider it and decide that it is the correct principle so he is persuaded that
he should follow it. Persuasive precedent comes from a number of sources:
Courts lower in the hierarchy such an example is R v R (1991) where the
House of Lords agreed with and followed the same reasoning as the Court of
Appeal in deciding that a man could be guilty of raping his wife. Decisions of
the Judicial Committee and the Privy Council this court is not part of the
court hierarchy in England & Wales so its decisions are not binding however, due
to many of its judges being part of the Supreme Court the judgements of the
Privy Council are treated with respect and may often be followed. An example of
this can be seen in the law on remoteness of damage in the law of tort and the
decision made by the Privy Council in the case of The Wagon Mound (No 1)
