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Judicial Precedent

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  • September 2012
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Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis', meaning to “stand by decided matters”. A binding precedent is where previous decisions must be followed. This can sometimes lead to unjust decisions, which I will address when talking about the advantages and disadvantages of binding precedent. First I will address how the process of judicial precedent works, including the hierarchical structure of the courts, moving on to the advantages and disadvantages of using the doctrine. A binding precedent is created when the facts of a latter case are sufficiently similar to the facts of a previous case. The doctrine of precedent is often referred to as being a rigid doctrine. Within the court hierarchy, every court is bound to previous decisions made by courts higher than them. At the very top of the court hierarchy is the European Court of Justice, followed by the House of Lords, which is considered to be the supreme court as many laws do not concern European Union law. Decisions made by the House of Lords become binding on all other courts within the hierarchy. Below the House of Lords is the Court of Appeal, which has two divisions, Civil division and Criminal division. Both divisions are bound to decisions made by the House of Lords and the European Court of Justice. Additionally, they are bound to their own decisions, with the exception that the Criminal division is more flexible where a case involves a person's liberty. The Divisional Courts along with the High Court are also bound to decisions made by the House of Lords and the European Court of Justice, with the addition to the Court of Appeal, and the Divisional Courts in the case of the High Court. Between 1898 and 1966, the House of Lords were bound to their own previous decisions, making the law consistent due...

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