Case Law & Precedent 1
Nature of decisions
- 2 theories
o The decisions of the courts are law
o Decisions of the courts are evidence of the law
Declatory theory of the law
Constitutional dimension
- Judges lack constitutional legitimacy to be legislators
o Due to parliamentary supremacy & separation of powers
- A judge can only respond to the situation which has arisen & judge made law can
be overruled by parliament
Doctrine of precedent
- A proposition stated in one case is binding in a later case if
o It’s a proposition of law
o Its part of the ratio decendi
o It’s decided in a court whose decisions are binding on the present case
o There are no relevant distinctions between the 2 cases
Advantages of precedent
- Consistency, certainty, predictability
o Central to the ideas of justice & fairness
- Efficiency
Disadvantages of precedent
- Subtle variations in decisions can make the law complex
- Binding precedent can render the law rigid
- Uk judges aren’t required to consider the social & economic effects of their
judgements
- Retrospective effect
Ratio decendi – the binding part of the decision
- The reason/ legal principle for the decision
- Often hard to identify
Obiter dictum – the thing said in passing
- Defined as all those parts of the judgement which are capable of being
statements of law but don’t fall within the definition of ratio decendi
Reasons statements of law may be obiter
- If its wider than necessary to decide the particular case
- If a judge speculates about the decision he would’ve made if the facts of the case
had been different
- If the judge says what his decision would’ve been if he hadn’t been bound by
judicial precedent
- If it’s in a dissenting judgement
Material facts
- Goodhart’s test – to find the ratio, you need the material facts
o Facts which are essential for the decision to be as it is
- Facts as to person, time, place & amount are all presumed not to be material
unless there’s a good reason to be contrary
Levels of generality
- It’s not always obviously which facts are material
Nature of decisions
- 2 theories
o The decisions of the courts are law
o Decisions of the courts are evidence of the law
Declatory theory of the law
Constitutional dimension
- Judges lack constitutional legitimacy to be legislators
o Due to parliamentary supremacy & separation of powers
- A judge can only respond to the situation which has arisen & judge made law can
be overruled by parliament
Doctrine of precedent
- A proposition stated in one case is binding in a later case if
o It’s a proposition of law
o Its part of the ratio decendi
o It’s decided in a court whose decisions are binding on the present case
o There are no relevant distinctions between the 2 cases
Advantages of precedent
- Consistency, certainty, predictability
o Central to the ideas of justice & fairness
- Efficiency
Disadvantages of precedent
- Subtle variations in decisions can make the law complex
- Binding precedent can render the law rigid
- Uk judges aren’t required to consider the social & economic effects of their
judgements
- Retrospective effect
Ratio decendi – the binding part of the decision
- The reason/ legal principle for the decision
- Often hard to identify
Obiter dictum – the thing said in passing
- Defined as all those parts of the judgement which are capable of being
statements of law but don’t fall within the definition of ratio decendi
Reasons statements of law may be obiter
- If its wider than necessary to decide the particular case
- If a judge speculates about the decision he would’ve made if the facts of the case
had been different
- If the judge says what his decision would’ve been if he hadn’t been bound by
judicial precedent
- If it’s in a dissenting judgement
Material facts
- Goodhart’s test – to find the ratio, you need the material facts
o Facts which are essential for the decision to be as it is
- Facts as to person, time, place & amount are all presumed not to be material
unless there’s a good reason to be contrary
Levels of generality
- It’s not always obviously which facts are material
