THE RULES OF PRECEDENT

The starting point from which to explain the English doctrine of precedent is the principle of justice that like cases should be decided alike. This principle is enforced in English law by the rule of stare decisis (keep to what has been decided previously) and although this is a rule that is almost universally applied in all jurisdictions throughout the world, this rule has a peculiarly coercive or binding nature in the English system.

This particu­larly coercive nature comes from the rules of practice of English judges, called “rules of precedent”. These rules state that to a large extent English law is based on case law. Case law consists of the rules and principles acted on by judges in giving decisions and in the English system obliges a judge in a subsequent case to have regard to these matters in making his decision. This is unlike many other jurisdictions where a judge regards the rules and principles on which a judge acted in a previous case as material he may take into consideration.

The fact that English law is largely a system of case law means that a judge's decision in a particular case constitutes a “precedent”. There are a number of different types of precedent. The judge may simply be obli­ged to consider the former decision as part of the material on which his present decision could be based, or he may be obliged to decide the case before him in the same way as that in which a previous case was deci­ded unless he can find a good reason for not doing so. Finally, the judge in the instant case may be obliged to decide it in the same way as that in which the previous case was decided, even if he can give a good reason for not doing so. In the last mentioned situation the precedent is said to be “binding” as contrasted with the merely “persuasive” effect in the other two situations.

Finally, it must be stated that only certain parts of a decision are regarded as binding. These parts are called the ratio decidendi of the case. The structure of a typical judgement in a civil case would probably be as fol­lows: the judge sums up the evidence, announces Ms findings of fact (if there is no jury), reviews the argu­ments addressed to him by counsel for each of the parties during the trial, and gives his decision, If a point of law has been raised then he will normally discuss a number of previous decisions (or 'authorities') and state their bearing on the instant case. In doing so he may decide to 'distinguish' certain previous decisions from that case as he may find reasonable differences between the issues in those cases and those in the instant case. Only the rule or rules which may be extracted from the judge's reasoning which led to his decision in that particular case may be regarded as the ratio of the case and therefore as binding authority. Any other proposition of law which may be found in the judgement is regarded as an obiter dicta and hence of merely persuasive authority.

Task 1. Read the text and answer the following questions.

1. Which Act of Parliament defined the present hierarchy?

2. Define case law.

3. What is the difference between “binding” and “persuasive” decisions?

4. Which parts of a judge’s decision are normally “binding” and “persuasive”? W is the difference between ratio decidendi and dictum/data?

Task 2. Render the text.

Text 6

Date: 2015-01-02; view: 1928