‘Judicial Precedent Is Best Understood as a Practice of the Courts and Not as a Set of Binding Rules. as a Practice It Could Be Refined or Changed by the Courts as They Wish.’ Discuss

Topics: Law, Common law, Case law Pages: 7 (2223 words) Published: May 4, 2011
The doctrine of precedent, or stare decisis, lies at the heart of the English legal system. The doctrine refers to the fact that within the hierarchical structure of the English courts, a decision of a higher court will be binding on a court lower that is in that hierarchy. In general terms this means that when judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it. It is noted that the doctrine of precedent depends for its operation upon the principle that the courts form a hierarchy with each court standing in a definite position in relation to every other court. The structure of this hierarchy must now be considered for the purposes if the doctrine of precedent. Decisions of the highest courts are binding on lower courts. The House of Lords decisions are binding on all other courts in the legal system, except the House of Lords itself.

In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts. Judicial precedent is where the past decisions of the judges create law for future judges to follow. English precedent is based on the Latin, stare decisis, meaning stand by what has been said in the past. This allows the rules system to be consistent: like cases treated alike, and it is just, as people can decide on a course of conduct knowing what the legal consequences will be. Judicial Precedent can only operate if the legal reasons for past decisions are known, therefore, at the end of the case there will be a judgment. This will contain the precise words of the judge and follow a Law Report, which consists of full accounts of cases that are considered important. It will give an account of the facts of the case and a summary of the decision. The principles of law that the judge used to make his decision are the important part of the judgment, and are known as ratio decidendi, or ‘the reason for deciding’. This is what creates a precedent for judges to follow in future cases. This is identified not by the judge that makes the decision, but by lawyers looking at it afterwards, they may therefore have different views on it. The remainder of the judgement is called obiter dicta and in future cases, judges do not have to follow it. These are other things the judge said, such as the reasoning and explanation of why he made the decision. First, stare decisis, which mean to stand by the decided, whereby lower courts are bound to apply the legal principles set down by superior courts in earlier cases and appellate courts follow their own previous decisions.  For example: * The High Court must follow decisions of the Court of Appeal, which must follow decisions of the House of Lords.  The Court of Appeal must also follow its own previous decisions. Secondly, the binding part of a previous decision is the ratio decidendi (reason for the decision) and it must be followed by judges in later cases.  Anything said obiter dicta (by the way) in the original case is merely persuasive because it was not strictly relevant to the matter in issue and does not have to be followed.  For example: In Donoghue v Stevenson, the claimant suffered food poisoning after drinking from an opaque bottle of ginger beer which contained a dead, decomposing snail.  The House of Lords held that * A manufacturer owed a duty of care to the consumer that products are safe because the circumstances prevented the consumer from discovering any defects.  This is the ratio and Lord Atkin’s “Neighbour Test” was obiter....

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