Summary Checklist Legal Studies

Courts play two roles in the law-making process
Common law
– Common law is the law that has evolved through the decisions of judges. Originally
the term referred to the general principles of law that applied throughout the
English courts. Common law was developed by judges looking back at previous
decisions in past cases to determine what the law should be.
– A precedent is a reported judgment of a court that establishes a point of law.
– A reported decision may contain three key elements:
– a decision inter partes—the decision between the parties
– a ratio decidendi—the legal principle upon which the decision is based
– an obiter dictum statement—a statement of opinion on an aspect of the
application of the law but not the legal reasoning for the decision.
– The operation of precedent is based on the principle of stare decisis.
Stare decisis
– Stare decisis means that a court will stand by what has been decided:
– a precedent can only be set by a superior court in the same hierarchy
– for a decision to be considered a ‘binding precedent’ it must be made by a
superior court (usually in the exercise of its appellate jurisdiction)
– all lower courts are bound by the decisions of higher courts in the same
hierarchy in like cases
– decisions of courts at the same level are not binding.
Binding precedent
– A precedent will be considered to be binding if:
– there is a ‘like’ fact situation
– it is made by a superior court in the same hierarchy exercising its appellate
jurisdiction.
Persuasive precedent
– A persuasive precedent is a convincing argument. It does not have to be
followed.
– A precedent will be considered to be persuasive if:
– it is the ratio decidendi of a court at the same level or lower level in the same
hierarchy
– it is the ratio decidendi of a court from another hierarchy.
Flexibility in precedent
– Reversing a precedent—where a higher court hears a case on appeal and
decides that the lower court has wrongly decided... [continues]

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