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DescriptionThis essay is about judicial precedent
Judicial Precedent Read Elliot and Quinn page 5 to 23.
Doctrine of Stare Decisis
The English system of precedent is based on the Latin maxim: “Stare Decisis et Non Queita Movere”, stand by what has been decided and do not unsettle the established. The idea is that by following precedents, which are the previous decisions of judges, fairness and certainty will be provided.
Precedents can only operate if the legal reasons for past decisions are known. Therefore, at the end of a case (civil) there will be a judgement in which the judge will give not only the decision but also the legal reasoning which lies behind it.
This is the legal reason or principal which lays behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases. The remainder of the judgement is known as the:
“Other things said by the way.”
These comments do not form part of the ration (reasoning) and are therefore not part of the precedent. For instance, sometimes a judge will speculate on what his decision would have been if the material facts had been different.
Sometimes, part of the Obiter Dicta may be put forward in future cases and although it will not form a binding precedent it may help to ‘persuade’ a later judge towards a particular view in the law.
N.B. It is sometimes difficult to distinguish between ratio and any headings as the judgement is usually in continuous form without any headings specifying what is ratio and what is not.
There may also be a number of speeches at the end of a case, depending on the number of judges sitting and how they have individually arrived at their judgement. This can mean that there is more than one ratio.
Different Types Of Precedent.
If a point of law has never been decided before, then whatever the judge decides will form a new precedent for later cases to follow. Donaghue v Stephenson (1932) snail in a bottle case – negligence. As there are no past cases for the judge to base his decision on, he is likely to look at cases that are closest in principal and he may decide to use similar reasoning. This way of arriving at a judgement is known as ‘reasoning by analogy’ see handout 61.
This is a precedent from an earlier case, which must be followed even if the judge in the later case does not agree with the legal reasoning. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions was made by a court which is senior too, or in some cases the same level as, ...
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