Commercial Law Exam Question

Only available on StudyMode
  • Download(s) : 1422
  • Published : February 24, 2012
Open Document
Text Preview
1.Discuss and define the doctrine of “Stare decisis”.

Stare decisis means to stand by previous decisions in Latin. The doctrine of stare decisis is a doctrine of precedence and has two aspects: 1) definitional or substantial – the principle of law is found in the precedence called the ratio decidendi: the narrowest and necessary legal principle upon which a legal decision was based. This is the aspect of the case that binds future courts and must be followed. 2) Structural: what precedent cases must be followed. Rupert Cross wrote a book called “precedence in legal law” and described the structural component of the stare decisis as “every court is bound to follow nay case decided by a court above it in the hierarchy of courts and appellate courts are bound by their own decisions save and except the court of Canada and the House of lords.

Historically, the doctrine of stare decisis, although it persisted as the organized principle, was never itself a doctrine of a rule of law. It operated solely based on the rule of custom until around the 15th century when people became concerned with consistency and certainty in the law. The doctrine of stare decisis could provide them with this and it became more rigidly followed. It wasn’t until the 19th century that the House of Lords accepted the doctrine of stare decisis and proclaimed it law. This was influenced by: the industrial revolution, people were increasingly more intellectual, rational and positivists, and commercial printing had become even more developed and greater distribution systems were available.

According to Freedmon, the doctrine of stare decisis produces the 3 C’s: certainty – we must know what the law is, consistency – a quality of treatment should be sought with similar cases being treated similarly, and continuity – we must avoid the disastrous inconvenience of introducing doubt into the law through judicial departures from precedent.

Some problems exist with the respect to...
tracking img