System of Precedent

Topics: Common law, Law, Stare decisis Pages: 2 (842 words) Published: May 11, 2013
Precedent is the base of common law and it is applied by many countries. In England, it follows the legal principle of binding precedent (STARE DESICIS in latin), which refers to existing law that must be followed in similar cases to achieve a fair outcome. Precedent can also be persuasive (OBITER DICTA). This essay will discuss the operation of precedent within the English legal system and the important role that is played by the court hierarchy and law reporting. Advantages and disadvantages will also be considered. Prior to The Norman Conquest in 1066, England had a different legal system in each region, but in 1154, Henry II created a unified system common to the country, so judges at the time travelled throughout the country bringing the King's justice. These practices evolved into what we now know as the common law system. In modern times there are three essential elements in the the system of precedent. Court hierarchy, binding precedent and accurate law reporting. Binding precedent relies on the legal principle of Stare Decisis, which means to stand by things decided. It ensures certainty and consistency in the application of law. The judgment of each case in court can bind all subsequent cases. Existing binding precedent from past cases are applied in principle to new situations by the judges in the courts. Ratio descidendi (latin for “reason for deciding”) is a rule that a judge has to use in court in order to make his judgement. Obiter dictum (latin for “other things said”) is another principle applied when judges are making their judgement. It is similar to ratio decidendi but it does not form a binding precedent, instead it becomes a persuasive precedent and a judge in a later case does not have to follow it, but the persuasive precedent can be consider when making their decision. Obiter dictum is an example that not everything in a court case sets precedent, a prior decision can be overruled this happens if a precious court did not correctly aplly...
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