W/E 30th November 2007
This week we started to look at the idea of judicial precedent. Judicial precedent is otherwise known as case law and is a major source of law in our legal system. It is based on the concept of stare decisis. Stare decisis means “stand by what has been decided and do not unsettle the established”. It provides certainty and fairness.
To provide a precedent – you need to know the legal reasoning behind a decision. This appears in the judgement given by the judge and is known as ratio decidendi (the reason for deciding). Judges follow this in later cases.
Anything else mentioned in a judgement, including the judgements of dissenting judges is obiter dicta (other things said).
The idea of precedent can be further separated into 3 rough categories:
1. Binding precedent – this is precedent from earlier case which must be followed even if the judge does not agree with the legal principle. To create a binding precedent the facts of the later case must be sufficiently similar to the earlier case.
2. Original precedent – where a point of law has never arisen before. Analogy is used to help decide the case.
3. Persuasive precedent – as the name suggests, this is not binding but is persuasive upon the judges. It can arise from a number of sources such as decisions of cases of courts in other countries e.g. Scotland; or obiter dicta comments in earlier cases.
Additional Reading
Please see the General Resource List.
Please read the following cases:
Hunter & Others v Canary Wharf Ltd and London Docklands Development Corporation (1995)
R v R (1991)
The Wagon Mound (No.1) (1961)
R v Howe (1987)
R v Gotts (1992)
