Explain How the System of Precedent Operates to Pursue the Goal of Certainty Whilst Ensuring That Certainty Does Not Result in Rigidity.

Topics: Precedent, Stare decisis, Common law Pages: 4 (1358 words) Published: February 7, 2011
The House of Lords has declared that the system of precedent is an indispensable foundation providing certainty in the law.

Explain how the system of precedent operates to pursue the goal of certainty whilst ensuring that certainty does not result in rigidity.

Judicial precedent: A judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the legal principle embodied in its decision

A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (to stand upon decisions) and by which precedents are authoritative and binding and must be followed. In giving judgment in a case, the judge will set out the facts of the case, state the law applicable to the facts and then provide his or her decision. It is only the ratio decidendi (the legal reasoning or ground for the judicial decision) which is binding on later courts under the system of judicial precedent. Any observation made by the judge on a legal question suggested by the case before him or her but not arising in such a manner as requiring a decision is known as obiter dictum (a saying by the way). There may be several reasons for a decision provided by the judge in any given judgment and one must not assume that a reason can be regarded as 'obiter' because some other 'ratio' has been provided. Thus, it is not always easy to distinguish ratio decidendi from obiter dictum when evaluating the effects of a particular decision. A single decision of a superior court is absolutely binding on subsequent inferior courts. However, certain of the superior courts regard themselves as bound by their own decisions whilst others do not: 1. Decisions of the House of Lords bind all other courts but the House does not regard itself as strictly bound by its previous decisions, for example, in Murphy v Brentwood District Council (1990) the House elected to overrule its earlier decision in Anns v...
Continue Reading

Please join StudyMode to read the full document

You May Also Find These Documents Helpful

  • Certainty and Flexibility in Judicial Precedent Essay
  • Certainty Essay
  • How Is Certainty Possible? Essay
  • Risk and Certainty Essay
  • Essay on The Three Certainties
  • Skeptical Certainty Essay
  • The Three Certainties Essay
  • How Precedents Are Applied in Court and the Rules of Statutory Interpretation. Essay

Become a StudyMode Member

Sign Up - It's Free